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ENDANGERED SPECIES ACT: WASHINGTON, DC- 
PART III 



HEAEING 

BEFORE THE 

TASK FORCE ON THE 
ENDANGERED SPECIES ACT 

OF THE 

COMMITTEE ON RESOURCES 
HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

FIRST SESSION 
ON 

THE IMPACT OF THE ENDANGERED SPECIES ACT ON 
THE NATION 



MAY 25, 1995 



Serial No. 104-18 



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.e of the Committee on Resources 



Jul ! £ujJ 



BOSTO.'.PUSLIG LIBRA 

GOVERNMP^-. DOCUMENTS oePARTMEN' 




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10 



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^$1^ 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1995 



For sale by the U.S. Government Printing Office 
Superintendent of Documents, Congressiona] Sales Office, Washington, DC 20402 
ISBN 0-16-047571-6 



V<Y, 'f3i/^'l<^^-'S' 
ENDANGERED SPECIES ACT: WASHINGTON, DC- 
PART III 



HEARING 

BEFORE THE 



TASK FORCE ON THE 
ENDANGERED SPECIES ACT 

OF THE 

COMMITTEE ON RESOURCES 
HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

FIRST SESSION 
ON 

THE IMPACT OF THE ENDANGERED SPECIES ACT ON 
THE NATION 



MAY 25, 1995 



Serial No. 104-18 



RbCfeiVecr 



le of the Committee on Resources 



i JUL 3 1 2003 



B0ST0JPU8LIG LIBRA 

GOVERN^??!. noCUMENTS oePARTMEN 




i0^ 



0^ 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1995 



For sale by the U.S. Government Printing Office 
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 
ISBN 0-16-0A7571-6 



COMMITTEE ON RESOURCES 



DON YOUNG, 
JAMES V. HANSEN, Utah 
JIM SAXTON. New Jersey 
ELTON GALLEGLY, California 
JOHN J. DUNCAN, Jr., Tennessee 
JOEL HEFLEY, Colorado 
JOHN T. DOOLITTLE, California 
WAYNE ALLARD, Colorado 
WAYNE T. GILCHREST, Maryland 
KEN CALVERT. CaUfomia 
RICHARD W. POMBO, California 
PETER G. TORKILDSEN, Massachusetts 
J.D. HAYWORTH, Arizona 
FRANK A. CREMEANS, Ohio 
BARBARA CUBIN, Wyoming 
WES COOLEY, Oregon 
HELEN CHENOWETH, Idaho 
LINDA SMITH, Washington 
GEORGE P. RADANOVICH. CaUfornia 
WALTER B. JONES, Jr., North CaroUna 
WILLL\M M. (MAC) THORNBERRY, Texas 
RICHARD (DOC) HASTINGS, Washington 
JACK METCALF, Washington 
JAMES B. LONGLEY, Jr., Maine 
JOHN B. SHADEGG, Arizona 
JOHN E. ENSIGN, Nevada 



Alaska, Chairman 

GEORGE MILLER, California 
NICK J. RAHALL II, West Virginia 
BRUCE F. VENTO, Minnesota 
DALE E. KILDEE, Michigan 
PAT WILLIAMS, Montana 
SAM GEJDENSON, Connecticut 
BILL RICHARDSON. New Mexico 
PETER A. DeFAZIO. Oregon 
ENI F.H. FALEOMAVAEGA, American 

Samoa 
TIM JOHNSON, South Dakota 
NEIL ABERCROMBIE, Hawaii 
GERRY E. STUDDS, Massachusetts 
W.J. (BILLY) TAUZIN, Louisiana 
SOLOMON P. ORTIZ, Texas 
OWEN B. PICKETT, Virginia 
FRANK PALLONE, Jr., New Jersey 
CALVIN M. DOOLEY, California 
CARLOS A. ROMERO-BARCELO, Puerto 

Rico 
MAURICE D. HINCHEY. New York 
ROBERT A. UNDERWOOD, Guam 
SAM FARR, California 



Daniel Val Kish, Chief of Staff 

David Dye, Chief Counsel 

Christine Kennedy, Chief Clerk /Administrator 

John Lawrence, Democratic Staff Director 



Task Force on Endangered Species Act 



RICHARD POMBO, California, Chairman 



WAYNE T. GILCHREST, Maryland 

JOHN T. DOOLITTLE, CaUfornia 

J.D. HAYWORTH, Arizona 

BARBARA CUBIN, Wyoming 

WES COOLEY. Oregon 

HELEN CHENOWETH, Idaho 

LINDA SMITH, Washington 

GEORGE P. RADANOVICH, California 

WILLIAM M. (MAC) THORNBERRY, Texas 

RICHARD (DOC) HASTINGS, Washington 

JACK METCALF, Washington 



GERRY E. STUDDS, Massachusetts 
ENI F.H. FALEOMAVAEGA, Am. Samoa 
CALVIN M. DOOLEY, CaUfornia 
MAURICE D. HINCHEY, New York 
W.J. (BILLY) TAUZIN, Louisiana 
BRUCE F. VENTO, Minnesota 
SOLOMON P. ORTIZ, Texas 



(II) 



CONTENTS 



Page 

Hearing held May 25, 1995 1 

Statement of Members: 

Duncan, Hon. John J., Jr., a U.S. Representative from Tennessee 4 

Pombo, Hon. Richard, a U.S. Representative from California, and Chair- 
man, Task Force on Endangered Species Act 1 

Studds, Hon. Gerry E., a U.S. Representative from Massachusetts 2 

Statement of Witnesses: 

Avery, Dennis T., The Hudson Institute 54 

Prepared statement 168 

Beattie, Mollie, Director, U.S. Fish and Wildlife Service, DOI 6 

Brown, Dr. William Y., Principal, RCG/Hagler Bailly, member. National 
Research Council, Committee on Scientific Issues in the Endangered 

Species Act 73 

Prepared statement 221 

Cade, Dr. Tom J., The Peregrine Fund, Boise, ID 68 

Prepared statement 192 

Cameron, Dr. David G., retired wildlife geneticist 52 

Prepared statement 163 

Clegg, Michael T., Chair, Committee on Scientific Issues in the Endan- 
gered Species Act (prepared statement) 215 

Frampton, George T., Jr., Assistant Secretary, Fish, Wildlife and Parks, 

U.S. Department of the Interior 6 

Prepared statement with attachments 83 

Gingrich, Hon. Newt, a U.S. Representative from Georgia, and Speaker, 

House of Representative 19 

Gordon, Robert, National Wilderness Institute 71 

Prepared statement 200 

Howell, W. Mike, Ph.D., Professor of Biology, Samford University (pre- 
pared statement) 239 

Jauhola, Christine, Group Leader for Wildlife, Fisheries, Range Land 

and Forest Land, Bureau of Land Management, DOI 6 

Kangas, Patrick, Natural Resource Management Program, University of 

Maryland 46 

Prepared statement 144 

KourUs, Thomas A., Commissioner of Agriculture, State of Colorado 11 

Prepared statement 133 

Maple, Terry L., Ph.D., Zoo Atlanta 47 

Prepared statement 148 

National Association of Realtors (prepared statement) 230 

Richardson, Terry D., Ph.D., and Paul Yokel, Jr., Ph.D., University of 

North Alabama (prepared statement) 247 

Schmitten, Holland, Director, National Marine Fisheries Service, Depart- 
ment of Commerce 7 

Prepared statement Ill 

Simberloff, Daniel, Florida State University 44 

Prepared statement 137 

Unger, David G., Associate Chief, Forest Service, Department of Agri- 
culture 10 

Prepared statement 125 

Wheeler, Nicholas, Ph.D., Weyerhaeuser 50 

Prepared statement 156 

Wood, Gene, Society of American Foresters, Clemson University 67 

Prepared statement 182 



(III) 



IV 

Page 

Additional material supplied: 

Interior Dept: Facts about the Endangered Species Act 274 

Communications submitted: 

Frampton, George T., Jr. (DOI): Letter of July 28, 1995, to Hon. Richard 

Pombo with responses to questions 253 

Torrence, Paul F., Ph.D.: Letter to Hon. Richard Pombo dated March 

14, 1995 225 

Woods, GiU, Jr. (Nat. Assn. of Realtors): Letter of June 1, 1995, to 
Hon. Don Young 229 



ENDANGERED SPECIES ACT: WASfflNGTON, 
DC— PART III 



THURSDAY, MAY 25, 1995 

House of Representatives, 
Endangered Species Act Task Force, 

Committee on Resources, 

Washington, DC. 
The task force met, pursuant to call, at 12:05 p.m. in room 1324, 
Longworth House Office Building, Hon. Richard W. Pombo (chair- 
man of the task force) presiding. 

Mr. PoMBO. Good morning. We are going to call the Endangered 
Species Act Task Force to order. 

STATEMENT OF THE HON. RICHARD POMBO, A U.S. REP- 
RESENTATIVE FROM CALIFORNIA, AND CHAIRMAN, TASK 
FORCE ON ENDANGERED SPECIES ACT 

Mr. PoMBO. I would like to — well, I guess it is afternoon now. I 
would like to welcome all of you to this hearing today of the ESA 
Task Force of the Committee on Resources. This is the 10th and 
final hearing of the task force, and with this hearing we complete 
the most comprehensive congressional investigation and review 
that has ever been undertaken on the Endangered Species Act. 

We have invited several officials from the Interior and Agri- 
culture Departments responsible for administering the act. We 
have also invited two panels of individuals with scientific and tech- 
nical backgrounds and knowledge who will testify on the scientific 
underpinnings of the act. We will also be joined later today by the 
Speaker of the House, the Honorable Newt Gingrich. 

Over the course of the past three months, the task force has held 
seven field hearings from coast to coast and three more here in 
Washington, B.C. There has been tremendous public interest and 
participation in the hearings. We have held more field hearings in 
1995 than all the previous 22 years since the act was signed into 
law. 

Over 100 witnesses testified at the seven field hearings. Three- 
fourths of them had never testified before Congress and had their 
first opportunity to speak directly to a panel of lawmakers. In total, 
154 people will have spoken at the 10 hearings. 

More than 8,000 people attended the field hearings, for an aver- 
age attendance in excess of 1,000 per hearing. 

Twenty-five Members of Congress participated in the bipartisan 
field hearings, including seven Democrats and 18 Republicans. 

Over 5,000 citizens have written to the task force, making sug- 
gestions for reform and improvements in the Endangered Species 

(1) 



Act. Their correspondence fills several large boxes and weighs over 
127 pounds. 

When the Endangered Species Act was first adopted by Congress 
in 1973, only three hearings were held on the legislation, all of 
them in Washington. In the 22 years since, only three hearings 
were held outside Washington, D.C., before the creation of this task 
force. 

The real lessons that we are learning through this process is the 
importance of continuing to rely on the democratic ideals upon 
which our government was founded. Our Constitution and our form 
of government are as relevant and essential today as when it was 
adopted in 1788. Our Bill of Rights ensures that the rights of every 
individual American are protected, even against the will of the ma- 
jority if the majority goes too far. One of the key elements of the 
Bill of Rights is the protection of private property from confiscation 
for government use, without the payment of just compensation, no 
matter how important or essential that government use may be. 

Today we will hear from a number of individuals who have been 
involved in various scientific issues surrounding the Endangered 
Species Act. While I agree that it is important to consider the 
views of scientists and that science is one of the key factors in this 
debate, it is our job to ensure that science is not used as an excuse 
or a basis for trampling on the constitutional or legal rights of any 
individual. While our wildlife and plants have enormous value, so 
do our civil and constitutional freedoms. 

It is important that science provide us with good information for 
making public policy, but the public policy has limits. Those limits 
include how to best use the taxes we pay, how to meet other equal- 
ly important needs and how to protect the civil rights of our people. 

We hope that the scientific community will meet the challenge of 
improving the information that we base our decisions upon, and we 
also hope that we will include in their deliberations some concern 
for protecting the foundations of our democracy. 

Thank all of you for your participation, and I look forward to 
your testimony today. 

I would at this time like to recognize the Ranking Member, Mr. 
Studds. 

STATEMENT OF HON. GERRY E. STUDDS, A U.S. 
REPRESENTATIVE FROM MASSACHUSETTS 

Mr. Studds. Thank you very much, Mr. Chairman. 

I would like to begin with an apology and explanation. I am 
going to have to leave right after — quite possibly during my open- 
ing statement. We have a very major markup going on simulta- 
neously across the street; and, thanks to our reforms, there is no 
such thing as proxy voting. So I will get back as often and as quick- 
ly as I can. 

I would like to begin with a quotation, if I may: "Various species 
of fish, wildlife and plants in the United States have been rendered 
extinct as a consequence of economic growth and development 
untempered by adequate concern and conservation. These species 
of fish, wildlife and plants are of aesthetic, ecological, educational, 
historical, recreational and scientific value to the Nation and its 
people." 



Those words were written 22 years ago as part of the congres- 
sional findings in an Endangered Species Act which enjoyed broad 
bipartisan support and was signed into law by that renowned 
ecoterrorist, Richard Nixon. 

Those words express the collective concern of this Nation's citi- 
zens, its Congress and its President about the alarming rate of spe- 
cies decline throughout the world. And those words, I am sorry to 
say, ring no less true today. 

There are now 700 species of plants and animals which are 
threatened or endangered. Hundreds more are in decline, and I 
hope it doesn't mar my reputation as an irrepressible optimist to 
report that we are approaching the rate of mass extinction as omi- 
nous as that witnessed by the dinosaurs. That period of devastation 
left behind the Tyrannosaurus Rex skull, now displayed in the of- 
fice of our Speaker, the very same Speaker incidentally who, as I 
think you know, last session cosponsored Mr. Dingell's and my re- 
authorization act, and I await with great interest what he has to 
say. 

Unlike in the cretaceous period, however, this time the cause of 
extinction is human. We have all heard horror stories about the 
regulatory overreaching of the act. They should begin our review 
of the act, not end it. As we recoil from tales of a Federal tree hook- 
ing conspiracy, we should not lose sight of the volumes of horror 
stories of the ESA that Richard Nixon and John Dingell drafted to 
avert. 

Massachusetts settlers once wrote in their journals that they 
could almost walk across Cape Cod Bay on the backs of the white 
whales that fed and nursed their calves in those waters. As we all 
know. North Atlantic white whales were later slaughtered by the 
thousands, and their habitat and food sources have been spoiled 
recklessly and continuously. Now, even after decades of protection 
from hunting, there are fewer than 350 in the entire world. 

There was also a time when you could stand at the banks of the 
Snake River in the Northwest and watch it turn blood red as thou- 
sands of sockeye made their way from the ocean up to their spawn- 
ing grounds. From that same bank today, you would be lucky to 
spot one of the few remaining fish. 

Salmon evolved throughout drought, el ninos, predators and the 
arduous journey upstream, but their genes never developed suffi- 
ciently to avoid hydropower turbines. 

Preserving the whale or salmon in our own land is no less dra- 
matic for anyone with even a fleeting appreciation for diversity on 
this earth in saving a snow leopard in the Himalayas or a moun- 
tain gorilla in Rwanda. 

At our recent hearings, I made some observations about the tone 
of the ESA debate, but that is not the whole story. The substantive 
questions on the table before us are deadly serious. It is our job to 
decide quite literally what life is worth — not a single life, but the 
future of entire species. 

Nearly everyone on this dais and on both sides of the partisan 
aisle opposes gutting the act, but what precisely does that mean? 
Whose life is worth how much and by what measure? How do we 
calculate the costs — economic, recreational, spiritual and environ- 
mental — of failing to save species from extinction? It is no illusion 



that those questions sound metaphysical. That happens when you 
start talking about potential cures for life-threatening diseases and 
about humility before matters of cosmic proportions. 

But if you think these are mindless abstractions, I would be 
happy to introduce you to the captains of boats in my district's mil- 
lion-dollar-a-year whale watch fleet and presidents of local cham- 
bers of commerce who believe passionately that the environment is 
our economy as well as our solemn responsibility. 

Throughout this debate, colleagues on all sides have stressed the 
need for the best available science. I agree. That is why three years 
ago, along with Senator Hatfield and then Speaker Foley, who were 
themselves a bit stressed by a certain spotted nocturnal creature, 
we all together asked the National Academy of Sciences to review 
the scientific foundations of the ESA, which still preoccupy this 
task force, including recovery efforts, definition of species and habi- 
tat protection. 

That study, released yesterday, concludes that the only way to 
prevent extinctions is to protect the natural habitat of threatened 
and endangered plants and animals. Its analysis can help us dis- 
tinguish matters of science from matters of policy and to distin- 
guish fact from anecdote. 

We will hear testimony shortly from one of the study's authors 
who, I suspect and hope, will summarize the 162 pages of that re- 
port. If we listen and if we learn, I think we can all leave today's 
hearing a little better informed and perhaps a little wiser. 

Thank you, Mr. Chairman. 

Mr. POMBO. Thank you. 

With unanimous consent, I would like to include all other open- 
ing statements in the record and introduce our first panel of wit- 
nesses. 

[The statement of Mr. Duncan follows:] 

Statement of Hon. John J. Duncan, Jr., a U.S. Representative from 

Tennessee 

I do not think that there is one Member of Congress who wants to see any life 
form become extinct. However, many of us recognize that there is a vast array of 
species, including humans, which must occupy a limited amount of space. 

Currently, there are over 900 species listed as endangered or threatened in the 
United States. 

If you rank States according to the number of species that each has, my State, 
Tennessee, ranks 5th. There are 84 listed species in Tennessee. That is almost one 
species for each county in our State. There are another 213 species which are being 
considered for listing. If all these species are ultimately Usted that would mean that 
each county in the State, on average, would have three listed species. 

Even here in the District of Columbia there are three species listed as threatened 
cr endangered. 

Through hearings held in the Resources' Subcommittee on Parks, Forests, and 
Lands, we have learned that the Federal Government owns 30 percent of all the 
land in the United States. 

It has been estimated that State and local governments own another ten percent 
of all the land in the U.S. Quasi-government entities own an additional nine per- 
cent. 

I have not been able to find any estimate on what percentage of land is 
undevelopable because it is set aside as critical habitat for listed species. However, 
a recent report released by the Government Accounting Office stated that 90 percent 
of all species are found on non-Federal lands. 

If State, local, and Federal governments own 50 percent of all the lands in the 
U.S., and when we consider all the land that is set aside for species habitat and 
wetlands preservation, then there is very little land for development. Furthermore, 



the land which is left for development is so expensive that the average American 
family starting out cannot afford to purchase a piece of property to build a home. 

In the Parks Subcommittee, we try to encourage private individuals or organiza- 
tions to preserve what they feel should be preserved because the Federal Govern- 
ment can no longer afford to create new parks. 

People can and will preserve our lands without a government mandate. For exam- 
ple, one of the most important historic sites in the country, Mount Vernon, has been 
preserved and is operated by a private organization. There are many others like The 
Alamo in Texas and the Biltmore House in North Carolina. 

It is my understanding that there are no incentives in the Act to encourage pri- 
vate individuals or organizations to preserve species. As the Act is administered, in- 
dividuals are punished through regulations by having a listed species on their prop- 
erty. I believe we need to amend this Act in such a way that we provide private 
property owners with incentives to save endangered species, not threaten them with 
regulatory measures which devalue their land. 

We are all aware of the impacts that listing the spotted owl had on the Pacific 
Northwest. However, incidents such as this occur in the East. 

For example, my colleague from West Tennessee, Congressman Ed Bryant, testi- 
fied before the Endangered Species Task Force about the Duck River Dgmi in Co- 
lumbia, Tennessee. 

In his testimony, he noted that the Tennessee Valley Authority began construc- 
tion on the dam in 1973. Since 1972 the people in Columbia Tennessee, have paid 
a total of $4.5 million in a surcharge that was placed on their water to help com- 
plete the dam. By 1983, TVA spent $84 million and had completed 90% of the con- 
crete portion of the dam when a species in the river was listed, and the project was 
stopped. I think it is ridiculous that taxpayer dollars are wasted in tlus manner. 

Not only does this Act cost taxpayers inillions of dollars through regulations, the 
recovery programs for species are increasingly expensive. For instance, the U.S. 
Fish and Wildlife Service plans to spend $70.2 million to help the blunt-nosed leop- 
ard lizard "recover." The agency has other recovery plans such as $85.9 million for 
the loggerhead tvutle; $53.5 million on the black-capped vireo and $29 million on 
the swamp pink. Even though we are spending all this money, not one species has 
been recovered and delisted as a direct resvilt of this Act. 

I beUeve that we need those who are responsible for the administration of this 
Act to carry out their duties in such a manner that they are considerate of taxpayer 
funds and more respectful of the average landowner. 

As I have said many times, the key to protecting the environment is balance. We 
must develop a strategy that balances the goals of environmental protection with 
requirements for economic stability. I beUeve that there is a balance that can be 
achieved in our search for an effective environmental policy if we are willing to find 
it. 

It is my sincere hope that we can amend this Act to provide a more balanced ap- 
proach to species preservation. 

Mr. POMBO. We have Mr. George Frampton, the Assistant Sec- 
retary of Fish and Wildlife in the U.S. Department of Interior; Hol- 
land Schmitten, Director, National Marine Fisheries Service; David 
Unger, Associate Chief, Forest Service; and Thomas Kourlis, Com- 
missioner of Agriculture, State of Colorado. 

Mr. Frampton, you may begin. 

And before you start, you guys have seen the lights before. We 
want to try to stay within the five-minute time period. Green, go; 
yellow, hurry up; and red, stop. And if you could try to stay with 
that as much as possible, I would appreciate it. 

Mr. Frampton. 



6 

STATEMENT OF GEORGE T. FRAMPTON, JR., ASSISTANT SEC- 
RETARY, FISH, WILDLIFE AND PARKS, U.S. DEPARTMENT OF 
INTERIOR, ACCOMPANIED BY MOLLIE BEATTIE, DIRECTOR 
OF THE U.S. FISH AND WILDLIFE SERVICE; AND CHRISTINE 
JAUHOLA, GROUP LEADER FOR WILDLIFE, FISHERIES, 
RANGE LAND AND FOREST LAND, FOR THE BUREAU OF 
LAND MANAGEMENT 

Mr. Frampton. Thank you, Mr. Chairman. 

I have submitted a lengthy statement for the record detailing the 
actions that the Administration has taken over the last two years 
to try to make the Endangered Species Act work better for species 
and the regulated public. 

To summarize, we think that the underlying purposes of this act, 
to protect imperiled species and habitats and biodiversity, are im- 
portant American public purposes and enjoy broad public support. 

We also think the Endangered Species Act itself has worked well 
in many, if not most, cases, that it has been successful in prevent- 
ing species from going extinct and moving other species toward re- 
covery. We know that the Endangered Species Act has problems, 
problems in terms of certainty and equity, predictability, and prob- 
lems in terms of its effectiveness in protecting species as well. 

We think that we have moved, under the existing law, with regu- 
lations and policies and strategies to solve some of those problems. 
Other problems require changes in the law, and we have put on the 
table a menu of amendments to the Endangered Species Act we 
think will allow us to carry that program out. 

I think probably it is fair to say that the place where the Act has 
worked the best in the last 15 years or 20 years has been in its 
direction to Federal agencies to work together to make sure that 
their projects and programs avoid causing extinction. 

You look at the last five-year period in which this was studied, 
of nearly 100,000 formal and informal consultations under section 
7, only several hundred jeopardy opinions resulted and only about 
50 projects or programs, l/20th of 1 percent, actually were with- 
drawn or stopped, which means that the agencies have adjusted in 
their planning processes. 

Where the Act hasn't worked well in terms of Federal agency ac- 
tions has been where the agencies have not followed their own laws 
and/or not worked together. The Pacific Northwest is a paradigm 
where the result of both of those happening was that the Federal 
timber program went into court receivership for several years. 

In that respect, I think this Administration has made the Act 
work better because we have caused agencies to work together. The 
President's forest plan is an example. In south Florida, the State 
with the second largest number of endangered species, there is re- 
markable State-Federal-private cooperation. In the San Francisco 
Bay Delta, with which some Members of the task force are famil- 
iar, it was getting four Federal agencies to work together on a 
water and endangered species set of issues that caused the State, 
then the agricultural users, the municipal water users and the en- 
vironmental community all to come together. 

I think where we have been able to do some work, but not 
enough under the existing law, is in involving State and local gov- 
ernments more. We can do a lot under the existing Act. The best 



example is the NCCP process in southern California. The Fish and 
Wildlife Service basically delegated to counties and local govern- 
ments, working with developers and environmentalists, the oppor- 
tunity to do multi-species plans, basically planning the habitat and 
open space for the area — much of the area between L.A. and San 
Diego — for the next hundred years, and the promises of the plan 
is minted — the Federal Government walks away and takes the En- 
dangered Species Act away. 

We can do more to involve the States and local governments, 
though; and we have proposed a series of changes to the Act that 
would do that, including allowing States to develop their own con- 
servation plans in exchange for removing the effect of listings of in- 
dividual species. 

Where the Act has perhaps not worked as well is with respect 
to private land, and we have basically adopted and are recommend- 
ing some changes to the law to help us further two strategies for 
private landowners. For small private landowners, we are propos- 
ing exemptions, in most cases, from the Act. We will have in the 
Federal Register, I hope within the next week or 10 days, a pro- 
posal for a generic exemption for most species for residential home- 
owners and those that want to develop five acres or less. 

Sometimes, for some species, we can do more. In the Pacific 
Northwest, we proposed an 80-acre exemption for timber land- 
owners. 

For large landowners, we have basically pioneered the idea of 
using voluntary multi-species agreements with timber companies 
in the States of Oregon and Washington. We have done the same 
thing in the Southeast with almost a dozen timber companies, try- 
ing to basically substitute for a species by species regulatory act a 
multi-species planning process that provides real certainty. 

And, finally, I think we made sure that science is brought to the 
Act with peer review of listings. The National Academy report I 
think affirms that the Act is based on good science. That doesn't 
mean, however, that some additional changes can't be made in 
areas like the petition process. 

Overall, Mr. Chairman, we think that the Act is working. We 
think it has been successful. We think it needs fixes. We think we 
are making some of those fixes under existing law, and we would 
like to join with you in a solid reform program to make some 
changes in the Act that respond to the problems we can't fix under 
existing law. 

Let's make this Act work better for species but certainly better 
for the regulated public as well. Thank you. 

Mr. POMBO. Thank you. 

[The statement of Mr. Frampton may be found at end of hear- 
ing.] 

Mr. POMBO. Mr. Schmitten. 

STATEMENT OF HOLLAND SCHMITTEN, DIRECTOR, NATIONAL 
MARINE FISHERIES SERVICE, U.S. DEPARTMENT OF COM- 
MERCE 

Mr. Schmitten. Thank you very much, Mr. Chairman and Mem- 
bers of the task force. I am Holland Schmitten, the Assistant Ad- 
ministrator for Fisheries, and I do very much appreciate this oppor- 



8 

tunity to present our views on the reauthorization of the Endan- 
gered Species Act (ESA) and our implementation of that Act. I have 
submitted written testimony, but in deference to the many other 
speakers, I would just simply like to summarize that testimony. 

On a personal note, I have been directly involved in the natural 
resources management of our country for the last 24 years. That 
includes timber, fish and wildUfe. The last 15 years I have served 
as the State Director of Fisheries, the Northwest Regional Director 
of National Marine Fisheries Service and, the past year-and-a-half, 
as the Assistant Administrator. I have had firsthand knowledge 
and experience in the implementation of the Endangered Species 
Act. 

As a resource manager, I would like to state that the Endan- 
gered Species Act is our only hope of preserving a rich national bio- 
logical heritage. In my discussions with other resource managers 
from around the world, the ESA is often used as a benchmark for 
species preservation that other countries aspire to. 

But there have been many lessons learned in the past 22 years 
since the passage of the Act, and it is appropriate that the Admin- 
istration and Congress look for ways to improve the effectiveness 
for both species and mankind. 

The Act designates both the Secretaries of the Interior and Com- 
merce or their designees, the U.S. Fish and Wildlife Service and 
National Marine Fisheries Service, for implementing the Act. The 
agencies have strived to be consistent in their administration of the 
Act. Just over a year ago we issued a joint policy on key aspects 
of the listing, consultation and recovery. But there also are some 
unique differences between our agencies in their administration of 
the ESA. 

The National Marine Fisheries Service has jurisdiction for all 
marine fishes, most marine mammals — the exceptions are polar 
bear, sea otters, manatees and walrus — and, through a 1976 MOU, 
the management of anadromous stocks. Those are fish that live 
their life in salt water and spawn in freshwater, the most famous 
being salmon and steelhead. The management for those species 
rest with the National Marine Fisheries Service. 

On the other side. Fish and Wildlife has responsibility for plants, 
terrestrial species and freshwater fish, plus the four marine mam- 
mals that I noted. A uniqueness — we have jurisdiction of sea tur- 
tles in their marine environment, and Fish and Wildlife has juris- 
diction on the nesting beaches. 

Of the 855 species that are currently listed, my agency manages 
29. We had 30 until last year, and we have delisted the gray whale. 
Further, our species, with the exception of Northwest salmon and 
shortnose sturgeon, are located in the marine environments, the 
oceans, and generally have minimum impact on private lands. 

Even though we manage such a small fraction of the total listed 
species, many of these species are extremely significant culturally, 
aesthetically, biologically and even economically. They are species 
that man can closely identify with and often create intense public 
interest, and they include seven species of whales, nine other ma- 
rine mammals, six sea turtles, four salmon stocks and three other 
fish species.. 



9 

Since most of my ESA experience deals with Northwest listed 
salmon, let me just describe those listings, how we implemented 
the Act and the lessons learned, because I think from that we can 
all shape how we can improve this Act. 

In 1985, 16 years after the passage of the Act, we received the 
first listing for anadromous stock. That was to list the Sacramento 
River winter run chinook. That was followed in 1990 with four peti- 
tions to list salmon stocks in the Snake and Columbia River. And, 
since 1992, we have received petitions to list in excess of well over 
100 salmon and steelhead stocks. 

And accustomed to dealing in a collaborative fashion with States 
and tribes on fisheries management issues, we applied the same 
philosophy to the management of the petitioned species. Even 
though the act doesn't require that, frankly, the States and Indian 
tribes have much of the necessary scientific information on which 
decisions to list are based upon. 

Once we concluded that process, we selected a seven-member — 
and that is both geographically and scientifically — diverse, outside- 
the-agency recovery team. The previous norm had been to use in- 
side-agency scientists. 

Further, they pioneered new areas in that the team, once it com- 
pleted its work, submitted that draft for scientific peer review be- 
fore submitting it to the agency. 

One of the big difficulties that we have confronted has been the 
management of section 7 consultations for Federal projects in Fed- 
eral contracts. The Act specifies that that is a process among and 
between Federal action agencies and the Federal reviewing agen- 
cies. This simply left out our partners, our States and our tribes, 
in those deliberations. 

Let me just indicate some of the important lessons learned. One, 
the Act is not proactive. It is designed to react when species are 
approaching extinction, which is the definition of endangered. I 
heard it recently described that we are simply ambulance chasers 
with the patient being critically or terminally ill. The Act needs to 
be restructured to focus on avoiding listings. 

Further, the ESA should be more user friendly. Also, the Act 
should encourage the use of outside scientists. It should encourage 
partnering with States, Indian tribes and anyone that has vital in- 
formation for making the scientific determination. 

Finally, there has been little incentive for private landowners to 
vest in the process. Plus, there is little flexibility for the very small 
landowners. Most of these issues were addressed in Secretary 
Babbitt's and Brown's 10-point plan, which has been referenced al- 
ready; and we will submit a copy of that plan to the Members. The 
changes are significant. They go to the heart of legitimate problems 
associated with the Act. 

Mr. Chairman, we acknowledge that the Act is in need of modi- 
fication and change, but that the essence and the philosophy of the 
original drafters of the Act to preserve species and their habitat to 
enrich our lives and the lives of future generations will never 
change. 

I look very much forward to working with you and the commit- 
tee. Thank you. 

Mr. POMBO. Thank you. 



10 

[The statement of Mr. Schmitten may be found at end of hear- 
ing.] 
Mr. POMBO. Mr. linger. 

STATEMENT OF DAVED G. UNGER, ASSOCIATE CfflEF, FOREST 
SERVICE, U.S. DEPARTMENT OF AGRICULTURE 

Mr. Unger. Thank you, Mr. Chairman. 

I would like to ask that our full statement be entered in the 
record, and I would like to summarize it briefly for you at this 
time. 

I would like to begin by mentioning that Secretary Glickman, as 
you know, has asked the Forest Service to develop a review of laws, 
regulations and policies affecting public land management — among 
them, the Endangered Species Act — and identify the interrelation- 
ships and potential conflicts, and opportunities for efficiencies and 
has asked us to deliver that report to him on the 1st of June. We 
think that that could be some helpful information in this process. 

The mission of the Forest Service, of course, is to do the best job 
we can, under the laws, to manage the 191 million acres of forests 
and rangelands and grasslands in our jurisdiction and to provide 
uses and values in products and services, while maintaining and 
managing the resources themselves and protecting them, including 
threatened and endangered species. And I would note that about 
one-third of all listed threatened and endangered species do occur 
on national forest lands. 

We have helped to protect and improve habitat for many threat- 
ened and endangered species, helped to bring back the bald eagle 
and peregrine falcon, grizzly bear, eastern timber wolf, light-footed 
ferret, Puerto Rican parrot, and the greenback cutthroat trout. But 
there are costs. There are direct costs. Research and protection ac- 
tivities of the Forest Service amount to about $40 million a year 
in this regard; and, of course, there can be significant reductions 
in outputs from the forests, such as timber in certain cases. 

Early on, we concluded that the best way to conserve threatened 
and endangered species is a proactive policy to protect and con- 
serve their habitats in order to prevent listing. We do this by iden- 
tif5dng sensitive species. We have identified 2,300 of them, and 
they have been designated as such. It takes time and effort, but it 
avoids the much more substantial costs and impacts if listing oc- 
curs later on. 

In order to carry out this preventive strategy, we work with 
many partners, including the agencies at this table and the others 
that have been mentioned earlier. 

We have developed an agreement with the key Federal agencies. 
One product of that agreement was the signing last Friday of a 
conservation agreement with the Forest Service, the Park Service, 
the Fish and Wildlife Service, the Arizona Game and Fish Commis- 
sion, Utah Division of Wildlife and the White Mountain Apache 
Tribe to protect the Arizona Willow. 

Consultation in the endangered species process is probably the 
most contentious aspect, but about 85 percent of our projects in the 
Forest Service either don't affect listed species or are determined, 
through informal consultation, not likely to adversely affect. When 
we do go to formal consultation, ordinarily that is completed within 



11 

the regulatory time limit of 135 days. But consultation can be un- 
wieldy when new information comes into the picture, especially if 
it is late in our analysis process or if a project is already under 
way. 

So we have been working closely with BLM and the Fish and 
Wildlife Service and National Marine Fisheries Service in the past 
several months to develop streamlining processes such as concur- 
rent evaluations, batching similar kinds of projects together so they 
can be dealt with at one time, and looking at shorter timeframes. 
We think this can help minimize delays in those kinds of cases. 

I would like to conclude simply by saying we are committed to 
effective implementation of the law, we are working to improve 
interagency coordination, and we support efforts to streamline the 
act in order to meet its objectives. Thank you very much. 

Mr. POMBO. Thank you. 

[The statement of Mr. linger may be found at end of hearing.] 

Mr. POMBO. Mr. Kourlis. 

STATEMENT OF THOMAS A. KOURLIS, COMMISSIONER OF 
AGRICULTURE, STATE OF COLORADO 

Mr. Kourlis. Thank you very much, Mr. Chairman. If I seem 
uncomfortable here making my testimony, it is because I lack the 
experience on doing such a thing, but bear with me if you would. 

My name is Tom Kourlis. I am Commissioner of Agriculture of 
the Department of Agriculture in Colorado and Chairman of the 
Endangered Species Committee for the National Association of 
State Departments of Agriculture. NASDA is a nonprofit associa- 
tion of public officials representing commissioners, secretaries and 
directors of agriculture in the 50 States and the four U.S. terri- 
tories. As chief State agricultural officials, NASDA members are 
keenly aware of the importance of balancing production and natu- 
ral resource conservation for their States and the Nation. 

I am also a sheep and cattle rancher in Northwest Colorado, and 
I am actively involved in the ranch that my father founded in 1926. 
I have managed that ranch on behalf of myself and three genera- 
tions for 22 years. The Kourlis ranch is located in the Axial Basin 
along the Yampa River and the critical habitat for endangered spe- 
cies of fish that has been designated on the reach of the river that 
runs through our hay meadows. 

I am here to suggest how we can improve the Endangered Spe- 
cies Act and how it can be made to work for those of us in agri- 
culture who are in a position to voluntarily cooperate with species 
recovery and effort. 

I would like to address three points which are of great impor- 
tance if we are to diffuse the bitter controversy surrounding the 
Endangered Species Act. These three changes in the reauthoriza- 
tion will increase effectiveness to imperiled species on the ground 
and will make the act more functional at the resource level. These 
points are included in my written testimony, which I have recently 
submitted for the record. 

Let me begin with the issue of certainty. Successful efforts to re- 
cover threatened and endangered species are very dependent on 
the ability of non-Federal landowners to contribute something of 
value. A major goal of the reauthorization should be to create vol- 



12 

untary incentive programs that encourage, rather than force, will- 
ing landowner cooperation. 

The National Association of State Departments of Agriculture is 
one of the agricultural organizations proposing just such a vol- 
untary incentive-based partnership for farmers and ranchers. We 
support the concept of voluntary whole-farm natural resource man- 
agement planning. 

As proposed by NASDA, these whole-farm plans will provide the 
technical and the financial assistance necessary for farmers and 
ranchers to voluntarily enhance conservation of their resources and 
provide improved wildlife habitat. Such plans will allow farmers to 
act, rather than react, to species' needs. Approval and implementa- 
tion of these plans would also give landowners certainty that they 
would be in compliance with the provisions of the Endangered Spe- 
cies Act. 

We strongly encourage this task force to include compliance lan- 
guage for whole-farm natural resource plans in the reauthorization 
of the Endangered Species Act. 

This action would be consistent with the approach taken by the 
House in H.R. 961 in the Clean Water Act. During Floor consider- 
ation of the water bill, the House voted 290 to 122 in favor of 
whole-farm plans. The Members of this task force voted 14 to three 
in favor of the plan. 

In addition, we support the concept of safe-haven agreements as 
another tool for increasing cooperation. Such agreements would 
allow appropriate State agencies to enter into voluntary prelisting 
agreements with landowners to ensure habitat conservation of can- 
didate species. Those agreements would offer certainty that the co- 
operators would not face additional obligations under the Endan- 
gered Species Act if the candidate species or another unforeseen 
species were to be listed at a later time. 

Both of these concepts are very similar to the no surprises policy 
and the voluntary incentives for landowners policy outlined earlier 
this year by the Secretary of Interior. 

The second point I would like to make is that there must be new 
partnerships between Federal and State governments in imple- 
menting the act. States should be given more authority so as to 
balance the powerful role of the U.S. Fish and Wildlife Service. The 
Service currently holds all the vetoes, all the cards; and naturally 
that breeds resentment, distrust and gridlock in the implementa- 
tion phases of the act. They should be given joint authority for deci- 
sions surrounding listing, critical habitat designations, recovery 
programs and delisting. This would greatly improve the cooperation 
and the development of quality programs. 

I am neither endorsing Federal primacy nor State primacy. What 
I am proposing is a Federal-State partnership. 

My third point is that we must not sacrifice good, workable 
projects in the pursuit of perfect solutions. Those of us who have 
spent our lives watching the unpredictable ways of nature know 
that we often must settle for something that works, works well, 
even if it is not completely perfect. We must decide when good is 
good enough. 

Let me ask you this question. In order to hasten recovery of an 
endangered fish, should we not take fertilized eggs from endan- 



13 

gered fish that are native to the region and raise hundreds of off- 
spring in captivity and release them into the critical habitat, effec- 
tively jump start the recovery? 

I recognize that captive breeding is subject to endless arguments 
among biologists worried about preserving diverse gene pools. Cap- 
tive breeding and reintroduction may not be a perfect solution. 
However, it is a pretty good jump start on the recovery when com- 
bined with habitat improvement, and that is something we 
shouldn't overlook. 

In closing, the reauthorization bill should stress voluntary co- 
operation. It is clear to me that the Federal Government simply 
does not have the resources to continue to force the State — those 
States, tribal and local governments and private landowners into 
compliance. If the act is truly to be successful, it must enlist those 
landowners as active and willing partners to accomplish a higher 
level of success. 

Thank you very much, Mr. Chairman. 

Mr. POMBO. Thank you very much for your testimony, and you 
did just fme. 

[The statement of Mr. Kourlis may be found at end of hearing.] 

Mr. PoMBO. Mr. Frampton, first, I would like to just get a couple 
of, I guess, housekeeping things out of the way. 

A couple of weeks ago, when we invited the members of the ad- 
ministration to testify, we submitted a list of questions to Secretary 
Babbitt; and if you can ask him about that and have him submit 
the answers to those questions for the record, it would be greatly 
appreciated. I was hoping that we would have them before your 
testimony today, but we have not received them yet, so I would ap- 
preciate that. 

Mr. Frampton. We are putting together the answers to those 
questions, Mr. Chairman, and — which I saw I think about 10 days 
ago; and we will provide them as soon as possible. 

Mr. POMBO. Another matter deals with a letter that you sent to 
me on March 10th of this year in response to my concerns on the 
fairy shrimp listing, and you commented in the letter that the 
science had been peer reviewed by several individuals, including a 
scientist from the University of California and a scientist from 
Stanford. I would appreciate it if you could — and I have not been 
able to find this — provide the names of who did the peer review on 
that — on that science. 

Mr. Frampton. I will do that as well, Mr. Chairman. 

Mr. POMBO. Thank you. 

[The material supplied may be found at end of hearing.] 

Mr. POMBO. I appreciate the tone of your testimony today, and 
I think that it will help us a great deal in trying to achieve a bill 
that is workable in both protecting endangered species and in deal- 
ing with the public. 

One of the things that concerns me is that it is — you have said 
in the past, and as well as today, that a number of the changes 
that heed to be made under the Endangered Species Act you feel 
can be done administratively versus through legislation, and I 
would agree with you that a number of changes can be done ad- 
ministratively. But one of the dangers in not correcting it in the 
legislation is that you are open to being sued on every time that 



14 

you try to use the flexibility that is within the act, as has been rep- 
resented by a number of cases. Particularly in the Pacific North- 
west, when the executive branch has tried to use the flexibility that 
is in the act, they have ended up in court over it. How do you re- 
spond to that? 

Mr. Frampton. Mr. Chairman, we think that our administrative 
and policy changes, without exception as far as I can think of, are 
soundly based in science and law and will withstand any court 
challenges. I am not aware of a case in which an attempt to use 
that kind of flexibility has been litigated, but we certainly do sup- 
port putting many of these new policies and regulations and strate- 
gies into law. 

For example, the issue of peer review has been an issue for 
years. We now have a standard policy, three independent scientists 
peer review every listing. That is a policy. We would like to see 
that written in the law. 

The Secretary's no surprises policy, which enables us to have a 
structure for saying to local government or a private landowner, if 
you do a plan that adequately accounts for the habitat needs not 
only of species that are already listed but species that might be 
listed, then we will not come back in 15 years or 20 years or during 
the life of the plan, even if new information is discovered, and 
make you spend more for those species. We would like to see that 
in the law. 

We would like to see a number of other things we have done to 
make habitat conservation plans, multi-species plans, and some of 
the things that we have done through the 4(d) rules, for example, 
in southern California also written into law. So we think we are 
on sound ground, but we would like to see that incorporated in the 
statute, those changes. 

Mr. POMBO. One of the proposals that has been put forth by the 
administration is an exemption for small property owners, and I 
happen to believe that that really is poor policy to establish a break 
point on — ^based on the size of the property. Wouldn't it be better 
to deal with the conflicts between private property owners and ESA 
so that an exemption based on size of property is not necessary? 

Mr. Frampton. Let me clarify what it is that we are proposing — 
we are going to formally propose it in the next week or two. Under 
the proposal residential homeowners, and this would take care of 
85 to 90 percent of the homeowners in the country, and all land- 
owners who want to develop or disturb five acres or less would or- 
dinarily be exempt, in the case of most species, from the Endan- 
gered Species Act. 

Now, in the case of species where there was an exception, we 
would change it, but the ordinary assumption would be a five- 
acre — not five-acre landowner but five acres of disturbance or de- 
velopment or less for a landowner, any size, one time. 

If your question is, is that a somewhat arbitrary standard to 
have, in general, yes, it is. But what we are aiming to do, just like 
programmatic permits under the Clean Water Act, is something 
that I think has proved very successful in the past. And that is, 
if we are relying primarily on public land and voluntary land- 
owners for large-scale habitat protection, we can let most people 
out from under the Endangered Species Act. And if we can give re- 



15 

lief to 90 or 95 percent of the people or in 90 or 95 percent of the 
cases without really undermining the purposes of the Act, let's do 
it. 

Mr. POMBO. And I understand that. I just believe that a better 
public policy approach is to deal with conflicts between private 
property owners and the protection of habitat in a much more 
broader sense. I think you will come to the same conclusion that 
small property owners have little or no impact on the overall sur- 
vival of species, but I think that by taking an arbitrary number, 
whether it is five, 10, 20 or 100 acres, whatever you come up with, 
I think that you are — that that is just poor policy from the sense 
of protection of species in general. 

Mr. Frampton. Well, let me make clear that we do have — we are 
already using and propose to expand a panoply of other efforts to 
resolve these issues. For example, in the 10 years before this Ad- 
ministration came to office, only 15 habitat conservation plans 
under section 10 were completed. We have now completed 60, four 
times as many as the last decade in the last two years; and we 
have almost 200 under negotiation. 

Those are not all voluntary agreements with large landowners, 
but many or most of them are. They are with major timber compa- 
nies. They are with county governments. 

And if you look at southern California or Washington County, 
Utah, for the desert tortoise or the agreement we signed with Plum 
Creek Timber in the Montana State lands division, in the Swan 
Valley or the Weyerhaeuser HCP we reached last month, we have 
got those kinds of tools to deal with larger landowners as well as 
small landowners. But we might as well let 90 or 95 percent of the 
people, including residential homeowners, out if it is easy to do. I 
don't think that that prejudices or undercuts the efforts we are 
making to take a strategic approach to larger landowners. 

Mr. POMBO. Unfortunately, 99 percent of the problems are with 
the larger property owners; and I don't think that there is different 
protections in the law based on property. 

My time is expired; and, with the committee's indulgence, I 
would like to recognize the full committee Chairman, Mr. Young. 

Mr. Young. Thank you, Mr. Chairman. I appreciate you having 
these hearings. 

It is amazing what an election will do, and now the cooperation 
exists that didn't exist before — not because of the administration in 
place today. It is basically to implement the law. 

I am one of the people, I think the last remaining person on this 
committee, who voted for this act originally. It was never intended 
to be implemented as it is being implemented. It has been regu- 
lated, it has been changed, and that is why we are having these 
hearings. And, hopefully, we can make it work. 

I am one that does not support repealing the act. We are trying 
to make it work. That is very, very important. 

The gentleman from Colorado, I thought you had great testi- 
mony. That is what this is about, this position of the government, 
the big-brother government telling States, individual farmers what 
they have to do or they go to jail. 

It won't work. We won't tolerate it. The people won't tolerate it. 
This is a partnership, supposedly, to protect the species, and you 



16 

have the case of the fish and you brought that up very clearly. 
What is wrong with trying to jump start, making this work? They 
say it can't be done, but you did it with the wolf, but you can't do 
it with the fish. That doesn't make sense. 

It is the willy-nilly application of the law that doesn't — is not 
consistent. And so I do think that before we are finished we have 
to make this a consistent partnership between States, private land- 
holders, the government and its agencies or we are going to be in 
serious, serious trouble, including the species themselves. 

I have some personal experience. A father left three brothers a 
piece of ground in California. One of the parts of the will was 21 
acres were not to be disturbed. We have, very frankly, in this area 
the last habitat as it was many, many years ago. We have taken 
care of the species. And now there is a chance that the golden go- 
pher snake or garter snake would be on that list, and we are being 
told you can't farm around it because you might disturb the habi- 
tat. 

Instead of saying that, they should reward the people who took 
care of the snake. That is what should happen. Instead of, if you 
don't, you are going to go to jail. If you plow your field, you are 
going to go to jail. 

And that has been the attitude of not only this administration 
but the agencies themselves. You don't have the support that I 
think is necessary to keep this act in place. We have to take it and 
rebuild it. 

But I would like to get to a couple questions to the gentleman 
from the Forest Service. 

Habitat conservation areas were imposed in the Tongas. Those 
areas totaled over 600,000 acres where timber harvesting was pro- 
hibited. At the same time, petitions to list the Alexander archipel- 
ago wolf and the goshawk were filed by the extreme environmental 
groups. 

Then Forest Service and Fish and Wildlife Service coordinated a 
review of the petitions on the wolf and goshawk. The goshawk peti- 
tion was denied. The bird was not listed. This was because there 
was no evidence that the bird was threatened or endangered. In re- 
ality, it was a fringe species. In fact, it has never been residing in 
the Tongas. 

Now, I want to ask a question. There is no evidence the species 
declined, as was the case in the goshawk, and if there is not a list- 
ed- species, then why should the listing process under ESA be used 
as a reason to impose habitat conservation areas like those in the 
Tongas? And by the way, you bring up one of the valid points. 

You say you are going to work together, but the Fish and Wild- 
life, Federal, said there was no listing of the wolf or the hawk. And 
yet the Forest Service to this day is implementing those conserva- 
tion habitat areas saying we don't care what Fish and Wildlife 
says. Now, what is the justification? Where is this partnership 
working with the Forest Service? 

Mr. Unger. I will let Mr. Frampton respond to part of that, but, 
again, by saying it is a proposal that is being commented on by the 
public now to establish interim areas, and the deferral of certain 
activities such as timber sales is being carried out during this pe- 



17 

riod until we determine what the final decision will be on adopting 
those. 

The basis, Mr. Chairman, was information that indicated that we 
needed to look closely at this situation and take some preliminary 
steps. And I believe that that effort to try looking at a sensitive 
species before listing and avoid listing, exemplifies what I was say- 
ing earlier. 

Mr. Young. Because what you have done is shut down harvest- 
ing in that area, period. 

Mr. Unger. No. 

Mr. Young. You have done that; don't tell me that. I have been 
there. Don't start this argument, because I have got people out of 
work. Areas that were supposed to be sold, supposed to be up for 
sale and being cut today, can't be done because of your action. Not 
the Fish and Wildlife. They have said publicly those species are not 
endangered. But you have not come back and said, all right, they 
are not endangered. 

And, you know, I am really concerned about this, because there 
were 6 million acres set aside just for habitat. We have done this 
in this Congress. Mr. Miller helped us do this. Six million acres for 
old-growth preservation, the habitat conservation, for endangered 
species and species that are indigenous to the area. And now you 
come along and shut down the rest of the areas because you think, 
your agency, they might be, in fact, endangered, when the Fish and 
Wildlife say they are not endangered. 

Now, you are two Federal agencies. You are under, frankly, our 
jurisdiction. And this is an example why this act has been misused. 
It has put my people out of work. Thousands of jobs right now are 
in jeopardy. Mills are being shut down, and very frankly, only 10 
percent of the forests in the Tongas is open for logging to begin 
with, because we have set it aside already. 

Mr. Miller helps me do this, 7.5 million acres we set aside. So 
I am saying, Mr. Chairman, all due respect, my time is up, you bet- 
ter get your act together, because you are misusing the act. It was 
never intended this way. We have documentation they are not en- 
dangered, and yet my people are out of work. My time is up, Mr. 
Chairman. 

Mr. POMBO. Mr. Williams. 

Mr. Williams. Thank you. Mr. Frampton, Secretary, let me ask 
you not so much about the Endangered Species Act in its general- 
ities, but with regard to a current specific effort underway, and 
that is this matter of wolves in Yellowstone, Wyoming, Idaho and 
Montana. As you are no doubt aware, there was some resistance 
among members of those States' delegations to the artificial reloca- 
tion of the wolf 

I was a little hesitant myself about artificially bringing the wolf 
back. I preferred, as did some of my biologist and science friends, 
to see the recovery proceed naturally. However, now it is a deal, 
we have a deal. And the wolves are there. And as you know, there 
are now howls in the Congress to unfund the effort. 

Now, even though I was hesitant about bringing the wolf in 
there, it seems to me doubly unwise to strip the money. I worry 
about the potential for no management of these wolves. They come 
under a certain section of the Endangered Species Act, which does 



18 

not entirely treat them as an endangered species, with the under- 
standing that they will be managed. 

If we pull the money, they can't be managed. It seems to me, 
that begins to endanger the ranchers and the others who live in 
the area. Can you visit with us some about the ramifications of 
pulling the money for that deal? 

Mr. Frampton. I would be delighted to. Director of the Fish and 
Wildlife Service, MoUie Beattie, is also here today. We have had 
several long discussions with Senator Bums about this in the last 
week, and I think we are getting very close to convincing him to 
change his view on this subject. Not quite there yet, but almost. 

Very briefly, we think wolf reintroduction is the fastest, cheapest 
way, to get this animal off the endangered species list, it is de- 
signed to get the wolf off the list in 2002. Save 15, 20, 25 years 
in getting this animal off the list, and will do it less expensively 
than the total cost over time of natural reintroduction. 

Now, you may disagree, one may disagree with that goal, but 
most people who support the Act, and almost everybody who is a 
critic of the Act thinks we should be moving to get species off the 
list. This does it faster and cheaper. That is number one. 

Number two, there has probably been more public input and pub- 
lic involvement in the process of the wolf reintroduction effort than 
almost any natural resource issue in the last 25 years. And there 
is strong national and regional public support for it. 

Third, the reintroduction part of this is designed to be more sen- 
sitive to rancher and grazing interests, more flexible, and protects 
those interests better than if we had natural introduction. And fi- 
nally, there is no real evidence that there is a threat here to ranch- 
ing interests from wolf reintroduction. In fact, a Federal judge 
leaned over backwards this spring to give the Farm Bureaus of the 
three States an opportunity to present evidence and found not that 
the evidence was slim or not enough to win their case, but that 
they presented no evidence that there was a real threat to the in- 
dustry. 

We have experience with this in Montana where there are about 
the same number of wolves as we are hoping to establish in Idaho 
and Yellowstone. Last year, cattle losses in Montana were $40 mil- 
lion, from all sources; $1,000 from wolves, all compensated. 

Last year in Montana, more than a thousand times as many 
sheep died from ovine ineptitude as died from wolves. That is a 
sheep that falls over and can't get back up. The fact of the matter 
is that we are going to spend about $300,000 a year for three or 
four years, about $1,200,000 for the reintroduction part of this. 

The overall monitoring and so forth is more expensive, about $6 
million in seven years. Most of this money will go to the three 
States. It is not being spent by the Fish and Wildlife Service, but 
by the three States. For that $1,200,000, we are going to advance 
this, getting this animal off the endangered species list by 10 or 20 
years. It is a good investment and to interrupt the investment and 
throw out the program would cost us a lot of money, would set back 
the effort, and would be worse for the ranching and farming and 
grazing industry, because then you have natural introduction. 

Mr. Williams. I thank you. Those — ^you have answered the ques- 
tion very well. Those have been my concerns as well. I want to say, 



19 

again, I was hesitant about bringing the wolf in. I want to note, 
finally, and it may be unusual for a Westerner to recall this, but 
you mentioned, Mr. Frampton, in total we will spend about $7 mil- 
lion on the wolf. We will spend — we spend five times that amount 
every year of the Federal taxpayers' dollars in helping ranchers 
eradicate coyotes and other pests, if W3 call them pests. And so we 
ought to worry about each Federal dollar, because they all spend 
the same. 

Now, let me finally say, and I, like the Chairman — ^Mr. Chair- 
man, I recognize the red light is on — but I want to say to the three 
Federal officials, maybe our neighbor from Colorado as well, and 
this may be a timely — my statement may be timely, because it 
comes when you are hearing a lot on the national news about the 
ambivalence of the West toward the Federal Government, and 
maybe even the resistance of the West toward the Federal Govern- 
ment, the Endangered Species Act and regulations in general. 

I can't speak for all of the West. Neither can anyone else, be- 
cause no one understands it. The West has always been a bit of a 
myth. The West is kind of a national event in America. But I think 
I understand Montana, and I want the three Federal officials here 
to know what I think I know for certain about Montana. 

Montanans have a deep visceral demand that the place be pro- 
tected. We want the great roving wild animals to be there for our 
great great grandchildren to see. We understand that there will be 
some discomfort in trying to protect Montana, and we are willing 
to put up with an appropriate amount of that discomfort in order 
that Montana will remain what America has named us. 

You know, our slogan for ourselves is "Big Sky." America adopted 
a different slogan, the "Last Best Place." And let me conclude by 
saying, when Montanans repeat that, when we repeat that Mon- 
tana is the last best place, we don't say it with pride. We say it 
with sadness. 

Thank you, Mr. Chairman. 

Mr. POMBO. Thank you. I already warned you guys that when 
the Speaker got here I was going to let him go, so we have been 
joined by the Speaker of the House, Newt Gingrich. You guys can 
just stay there, just scoot over a little bit. He doesn't take a lot of 
room. 

Welcome to the Endangered Species Act Task Force hearing. 
And, Mr. Gingrich, you may begin. 

STATEMENT OF HON. NEWT GINGRICH, SPEAKER, U.S. HOUSE 
OF REPRESENTATIVES 

Mr. Gingrich. Thank you, Mr. Chairman. Let me say I am very 
grateful and I apologize to the witnesses for showing up and speak- 
ing briefly, then I will get out of your hair. I just believe that what 
you are beginning with these hearings and what you have begun 
with your field hearings is so important to the country's future, 
that I wanted to come by and indicate a general framework of 
where I hope you and the Members on both sides of the aisle will 
go as you develop this and as you think this through and as we 
move forwards to Floor action. 

As you know, we have been working together and I want to 
thank the Chairman for meetings he has come to and several din- 



20 

ners we have had and opportunities to engage, and I also want to 
thank the Chairman of the full committee for the kind of approach 
he has made to this. 

I used to teach environmental studies. I am very deeply commit- 
ted to our having a strong and an effective environmental policy. 
I come out of a background of the Theodore Roosevelt wing of the 
party. 

President Roosevelt, Theodore Roosevelt said, in 1909, I quote, 
"The function of our government is to ensure to all its citizens now 
and here after their rights to life, liberty and the pursuit of happi- 
ness." If we of this generation destroy the resources from which our 
children would otherwise derive their livelihood, we reduce the ca- 
pacity of our land to support a population, and so either degrade 
the standard of living or deprive the coming generations of their 
right to life on this continent. 

I think the balance implied by Theodore Roosevelt, the Gifford 
Pinchot approach to conservation is very important. On the one 
front, you have legitimate property rights and legitimate economic 
interests. On the other front, you have a need for a level of 
biodiversity and a level of concern for the biological system that is 
also, I think, paramount. And the question is, how can we work to- 
gether? 

If you were to go back and look at the hopes of the people who 
helped pass the original Endangered Species Act, and that includes 
the Chairman of the full committee, I think their vision of where 
we would get to doesn't fit the bureaucracy and some of the 
micromanagement that we have ended up with, and doesn't fit 
some of the misallocation of source resources, and frankly, some of 
the bad science. 

On the other hand, I must say, and I wanted to come to register 
this, I have the deepest concern and I have been pretty consistent 
in my support of property rights. I understand the concern, for ex- 
ample, that not just Westerners, but rural Americans from most of 
the country have about a Federal Government that at times is too 
indifferent and too willing to run over their rights and their con- 
cerns. 

On the other hand, I have a deep concern for the biological diver- 
sity of the planet. My hope would be, and I want to just suggest 
three things and then I will get out of your hair, my hope would 
be that we are at the very beginning of a dialog; that it is totally 
legitimate in the context of the last decade that the loudest voices 
for reform are those who feel that their economic interests and 
their property rights have been run over, sometimes for the most 
trivial of reasons or by the most insensitive of bureaucracies. And 
I am sympathetic to that. 

On the other hand, we also have to recognize that there are enor- 
mous interests that we have as human beings in maintaining bio- 
logical diversity and that the truth is we don't even — we have only 
scratched the surface. And I emphasize this, this is not just about 
large vertebrates. 

I have worked — my dear friend, Terry Maple, is here from the 
Atlanta zoo. We have worked on rhinoceros and we have worked 
on elephant and other conservation. But this is also about the fungi 
and the various things which produce the medicine in the future. 



21 

And if you went through a hst of the things we have gotten out 
of the biological system, out of the biosphere, that have revolution- 
ized human health, just to take one sector, it is astonishing how 
much we have gotten and how little we know. 

From what I have seen so far of the new report in which a very 
distinguished group of scientists make the point, and this is the 
first of my three suggestions, that endangered, species, per se, 
isn't — may be the wrong slogan, may be the right slogan, but the 
wrong focus. 

Maybe we should seriously consider redefining the act; that in a 
very real sense it ought to be the Biological Diversity Act, because 
you can both overfocus on a specific species, and not understand 
what is happening around you, and you can also misallocate. 

If your choice is, and I want to emphasize here, and I would say 
this to all of my friends in the environmental movement, there has 
to be some element of rationalism about economic investment. And 
if our choice is a biologically diverse area that is in effect very im- 
portant to support, versus a single species by itself, we may con- 
clude let's invest the resources here, because we don't have infinite 
resources. 

So my first point will be I think we want to rethink the focus 
of the act away from a species-by-species static model toward a bio- 
logically sophisticated model. My second suggestion, frankly, is that 
once the act has been introduced and once we see what happens 
in the Senate, that maybe during the August break we find a way 
to take off ranchers and timber and biologists and environmental 
activists, and literally spend a week working through the various 
permutations of how it would work, including frankly, and I don't 
say this in any sense of surface, just childish gimmickry, asking 
the biologists to play the role of the rancher and the rancher to 
play the role of the conservationist, and getting people to walk a 
little distance in each other's shoes, and trying to be practical 
about where we are going. 

I will just close with this comment. I am very committed to 
bringing through the House a bill which is economically rational, 
biologically correct, and respects the property rights of individuals. 
And this is a very tough, very high standard. And it is going to 
take a lot of work this year to get there. 

I think Chairman Pombo has gotten us off to a good start. I ap- 
preciate the openness with which he has dealt with various biolo- 
gists and scientists that he and I have met with. I think we have 
got to make sure that everybody is in the room and everybody has 
a chance to think this thing through. And I came to pledge my sup- 
port to this committee, to this subcommittee, as it undertakes what 
I think is a very, very important project. I thank you. 

Mr. Pombo. Thank you very much, Newt, for being here, and the 
support you have given to the committee. I know that this is prob- 
ably one of the most controversial issues that we will take up as 
a new Congress, because it is an emotional issue on both ends of 
the spectrum. It is a controversial issue on both ends of the spec- 
trum. 

I appreciate your pledge to work with us in the protection of en- 
dsmgered species and the protection of people's private property 
rights. I think that that is key to making a bill that has worked. 



22 

And I know I have told you this before, but no act that we come 
up with will ever work unless the people that are out there in the 
real world support it. And that is one of the keys to making the 
Endangered Species Act work. And I appreciate you being here. 
Thank you. 

Mr. Gingrich. Thank you. Thank you very much. 

Mr. POMBO. Thank the panel for rejoining us. And, again, I 
apologize for the interruption in your testimony answering ques- 
tions. 

Next is Mr. Gilchrest. 

Mr. Gilchrest. Thank you, Mr. Chairman. 

I told the Chairman of the full committee, we all should have 
clapped for Newt on that speech. But the Chairman says we don't 
allow that. 

Mr. Young. Only for birthdays. 

Mr. Gilchrest. Only for birthdays. The gentleman from Mon- 
tana left, and I wanted to make a comment about "big sky" country 
and how they feel in a visceral way concerning the beauty of their 
State, so when they talk about the last best place, they do it with 
a sense of sadness. And I wanted to tell him that we feel that way 
about the Eastern Shore of Maryland, and some places in Mary- 
land. And we are under more pressure than Montana, given the ge- 
ographic location of the Eastern Shore of Maryland. So there is a 
lot of places in the country where people have a visceral sense of 
its beauty and its heritage and they want to protect it for future 
generations. 

I would like to ask Mr. Unger and Mr. Frampton if they might, 
because I have three questions and only five minutes, to quickly re- 
spond to Mr. Young's question about the habitat in the Tongas Na- 
tional Forest, where the Fish and Wildlife Service said a particular 
species was not endangered and the Forest Service is going 
through a plan to see whether or not they need to preserve more 
habitat as a result of the suspected endangerment of a particular 
species. 

Mr. Unger. 

Mr. Unger. Yes, let me begin by referring to my opening state- 
ment in which I said that we believe that in the long run the best 
policy is a proactive policy that avoids listing, that prevents situa- 
tions that lead to listing, because when a species is listed, the im- 
pact on the resource, the impacts on the economy, the impact on 
getting the job done, become much larger. 

We initiated a process to look at this. This occurred before the 
decision was made not to list. We proposed some interim guide- 
lines. We are in the process now of getting public comment pre- 
paratory to making a final decision. 

In the meantime, this action has taken place by the Fish and 
Wildlife Service and Mr. Young certainly is right that there have 
been deferments of timber sales, for example, in this period. But 
no final decision is made on the imposition yet of the interim guide- 
lines. 

Mr. Gilchrest. Mr. Frampton. 

Mr. Frampton. Congressman Gilchrest and Chairman Young, I 
think we are trying to work together to avoid precisely the kind of 
train wreck that occurred in the Pacific Northwest. 



23 

My understanding of the situation with the goshawk is not that 
it is not endangered, but there is simply not enough scientific infor- 
mation right now to be confident about its status. There are some 
very serious concerns. 

One of the criteria for proposing listing is whether other con- 
servation measures are being taken to keep a species off the list. 
And this is a situation that arises elsewhere in the country. And 
what we are trying to do, we the Administration, by having depart- 
ments and agencies work together in these situations, is, as Mr. 
Unger said, to encourage proactive measures by the land manage- 
ment agency or the operating agency so that we don't reach the 
point of listing; or even if listing is justified, where we don't have 
to trigger the Endangered Species Act because we let the Agency 
or the State or private landowners undertake conservation activi- 
ties. That is our goal in this case. I realize that the Chairman may 
not agree with the outcome, but that is our goal. 

Mr. GiLCHREST. I will yield to the gentleman. 

Mr. Young. Will the gentleman yield? Again though, your own 
agency says they are not endangered, they are off the list. That 
agency says we are going to keep them on the list, until we finally 
have scientific research. And I am saying in the meantime you 
have got people out of work. 

And secondly, may I suggest — ^give him some more time, Mr. 
Chairman — is we set aside 7.5 million acres for old growth preser- 
vation and habitat. That has not been looked at. You are going to 
the last areas that can be harvested. So in de facto you are taking 
the rest of it and saying, oh, no, we are looking for habitat. 

In the meantime, we have got two years, people are shut down, 
people are out of work. That is not fair. You misuse the act. And 
I know, Mr. Chairman, give him an extra minute. 

Mr. GiLCHREST. Thank you. I would like to follow up on this a 
little bit further, but I would like to ask Mr. Schmitten a question 
from NMFS. And I guess I have another minute here. 

Mr. POMBO. Go ahead, won't stop you. 

Mr. GiLCHREST. Thank you. There has been a lot of discussion 
about certain species of salmon becoming extinct for a variety of 
reasons, and I would assume, correct me if I am wrong, some of 
the reasons are habitat loss. And a lot of people say that there is 
still a lot of salmon out in the Pacific Northwest. 

It may not be the same number of species, but there is still a lot 
of salmon. And my question is, why do you need more than one 
species of salmon? And are subspecies important at all in the whole 
scheme of biodiversity and the quality of life for any species? Are 
subspecies important? Why do you need more than a few species 
of salmon? 

Mr. Schmitten. Thank you, Mr. Gilchrest. 

First, yes, in many parts of the Northwest, especially in Chair- 
man Young's area, there are a lot of salmon. Alaska has had six 
consecutive record runs. But why do you need subspecies of salm- 
on? 

Salmon are important culturally, diversity, just as the Speaker 
mentioned. For instance, the Snake River salmon are unique in 
many ways. They are worth saving in my eyes. The sockeye, the 



24 

furthest running sockeye in the world, 878 miles, they spawn at 
the highest elevation. They go the furthest south in the country. 

If you were to homogenize or have just a single species, it would 
be very subject to environmental catastrophes, man-made catas- 
trophes, and you would lose the entire species. If you keep 
biodiversity, that is less likely to happen. 

Mr. Frampton. Congressman Gilchrest, if I could just respond to 
that for a moment, I think the National Academy panel, whose re- 
port was issued yesterday, looked very hard at the issue of whether 
the Act should continue to focus on, and the importance of, sub- 
species and distinct populations, and the role that they play in con- 
tinuing to have the genetic diversity that preserves the long-term 
health of the entire species. The way I read this report, last night 
at least, is that it is a rather strong endorsement of the approach 
that the National Marine Fisheries Service has taken to so-called 
evolutionary significant unit, or evolutionary unit, a concept that 
the panel recommended actually be expanded along the lines that 
the Speaker just suggested, to try to focus more on biodiversity and 
less on individual species or subspecies. 

Mr. Gilchrest. Thank you very much. 

Thank you, Mr. Chairman. 

Mr. POMBO. Mr. Miller. 

Mr. Miller. Thank you, Mr. Chairman. Thank the panel very 
much for your testimony. 

Mr. Frampton, we thank you very, very much for your work out 
in California to help us sort out some of these difficult habitat spe- 
cies-related problems in terms of our State's future and its eco- 
nomic future. 

Let me ask you a question, and I — I don't take a back seat to 
anyone in the support of this legislation. But it seems to me that 
this legislation is subjected to a huge number of anecdotal stories 
about its implementation. And I have almost as many as any other 
Member of Congress, and we have all been besieged with them. 
And some of them turn out to be sort of true and not true and what 
have you, but there seems to be a core around those, and that real- 
ly is about some sense of uniformity or consistency or exactly what 
the rules are or are not. 

And it seems to — ^you know, the Secretary as part of HCA is the 
no surprise policy. It seems to me that very often landowners, de- 
velopers, in my area, it would be mainly developers, housing devel- 
opers, are constantly surprised by what the rules are going to be 
and that the rules seem to change throughout the entire engage- 
ment in dealing both, you know, with wetlands and/or species, that 
this is a constantly evolving — the dynamics are never quite less 
than fluid in terms of people who have to make decisions about 
time and time is money and that all sort of flows back into the con- 
gressional offices. 

And you have mentioned in your testimony what you are trying 
to do to bring more uniformity, more consistency to this, but I real- 
ly don't get a sense that we are there yet. And I don't know what 
our changing the law can do to help that, but I would also like to 
know what exactly the administration's views are on that. 

Mr. Frampton. Well, we have taken a number of steps. Con- 
gressman Miller, both to try to improve national uniformity, but 



25 

also to give more predictability when a species is listed. Our policy 
is when we list, we identify those private landowner activities that 
clearly will not perhaps get in harm's way under the Act, that we 
identify those. 

I would be the first to admit that there have been problems in 
the past. I think that the real question to this is to have a program 
that involves State and local government as well as private land- 
owners, and that involves the people who have to live with the con- 
sequences of the plan in developing the plan. 

Let me give you an example of how not to do it and how to do 
it. In the last Administration, the famous Stephens kangaroo rat 
was listed in Riverside County, and a lot of subdivision and devel- 
opment came to a halt, in part because people did not know exactly 
what they could do and what they could not do. 

The rat was even blamed for people's houses burning down. It 
turns out not to have been the case, but the uncertainty about 
these issues added to that set of perceived problems. And this is 
not after the election, but two years ago, when Secretary Babbitt 
made a decision to — we made a decision to — list the gnatcatcher in 
San Diego and Orange Counties. We published a special rule under 
the Endangered Species Act, which basically created an interim re- 
gime allowing a certain amount of development to occur, setting 
the ground rules, and deferring to State and local and county gov- 
ernments to work out a plan that would give clear allocations for 
developers and for protection, and a lot of certainty over a long pe- 
riod of time. 

It seems to me those are two different paradigms. We can do bet- 
ter with giving people advance notice about what they can do and 
not do, but the better solution is to get State and local government 
involved in a plan that gives real certainty. 

Mr. Miller. I guess that is welcome. I guess my concern is 
maybe more specific, and that is, and I am running out of time. Let 
me just put it out here. 

We can talk about it during the course of this bill, but, you know, 
on the ground, when you are seeking a permit, you are seeking to 
do something, there is an informal regime and protocol that takes 
place. And very often, what I think happens, is there is a gradual- 
ism that moves into the regiilation of the use of that land or how 
the development plan is going to be carried out, what have you. 
And very often it is not based on an endangered or threatened or 
candidate species. It is based upon concerns that agencies may or 
may not have for a species. 

And all of a sudden you find yourself, you have got to make some 
major decisions about the financing of your project, your go date, 
the weather, the lining up of your crews, and you find yourself in 
a position where you have got to give up a hundred acres because 
it is much cheaper to give up the land than to continue this discus- 
sion about concerns. And the concerns aren't based in, you know, 
scientific evidence as of that date or an3rthing else than that, but 
you simply are now economically put into the situation. 

And a hundred acres where I come from is worth a lot of money, 
but you have decided we will comply. And in some instances, you 
know, we have Fish and Wildlife that says this isn't a problem or 
State agencies that say this isn't a problem. It is somewhat analo- 



26 

gous to what Mr. Young said. And now the Corps says, yes, but you 
are not going to get that permit unless we do something about that 
species. 

Last time I looked, that wasn't their business, but when you are 
looking for the permit and you are — ^you know, you have got your 
future Bank of America or Wells Fargo, your negotiating positions 
are greatly diminished. And I think that is what concerns many of 
us, certainly in California, where we are still a high growth State. 
And very often, that then translates into higher cost housing, 
longer commute distances and a lot of other things that we are con- 
cerned about, when, in fact, the hard scientific evidence that we 
can argue about in terms of threatened and endangered and is sim- 
ply not present. I don't want to take up the committee's time. 

Mr. Frampton. I would just say that the multispecies habitat 
plan involving local government and the State, as well as private 
landowners, which is what is going on in San Diego and Orange 
Counties, is designed to prevent that from happening. Because 
what the plans do with the involvement of private landowners, is 
to look not only at species that are now the subject of State or Fed- 
eral regulation, but those which might become the subject of State 
and Federal regulation in the future. And once the plan allocates 
areas of habitat on a biodiversity basis, really a multispecies basis, 
for protection, and other areas that can be developed, then you 
have a very long period of certainty. You don't have a negative sit- 
uation. 

Guarantee is built in that somebody has plans to develop an area 
15 years from now and will not, in fact, be interrupted at the last 
minute. This approach is also an approach that I think received 
pretty warm support from the National Academy panel, and it is 
an approach which fits with the approach that the Speaker just de- 
scribed. 

Mr. Miller. But that approach is not being uniformly and uni- 
versally applied. So in fact, what you are doing is ad hocly creating 
habitat protection areas at the expense of the first person through 
the door. 

Mr. Frampton. Well, it is being systematically applied when we 
get State and local government involved in Orange and San Diego 
Counties, and in other places where we are trying to do that 
through local government. It is true that this is a slow process, 
that it is a model. We are pioneering it. I wish it would move fast- 
er, but I think it is 

Mr. Miller. I wouldn't argue with you. I expect that it is a 
model that would be welcome in most areas by economic interests, 
it would be welcome. But, you know, it is not in most areas. 

Mr. PoMBO. The gentleman's time is expired. But I feel like let- 
ting you keep going. 

Mr. Miller. Well, Mr. Chairman, I mean I think, you know, we 
get besieged, let me just say that. I don't want these remarks to 
be interpreted, because as I said, I am a very strong supporter of 
this act 

Mr. PoMBO. I don't think anybody questions that. 

Mr. Miller. But we live out there. When the rubber meets the 
road, we find very often that it is not according to Hoyle with how 
some people are treated and prices that are extracted for permits 



27 

and all of that. And I think that is what raises the anger of the 
people who are sitting on this side of the dais. And we have got 
to contend with that. 

And I think the Speaker sort of laid out those parameters, that, 
you know, whether you are an ardent — and Mr. Chairman, and I 
will argue about property rights until hell freezes over, but both of 
our positions have to somehow fit into the community. They have 
to fit, your property rights have to fit into the community. 

You can't just be a renegade in terms of your neighbors and 
these protections and our obligations to protect them. That has to 
fit into the community. That is all the point that I am trying to 
make here. 

Mr. POMBO. Well, thank you. 

Mr. Cooley. 

Mr. Miller. Any help I can give you, you let me know, Mr. 
Chairman. 

Mr. POMBO. You just keep it up, George. I gave that same speech 
on the Floor last year. 

Mr. Miller. I can assure you, it is not plagiarism, because I 
haven't read any of your speeches. 

Mr. PoMBO. No, but for the first time I feel like you are actually 
listening to what we are sajdng. 

Mr. Cooley. 

Mr. Cooley. I don't know if I should interrupt this. We are hav- 
ing too much fun. Secretary Frampton, you made some statements 
in the Wall Street Journal and I would like to ask you about some 
of these things. To quote what you said is a developing fee on raw 
land, land in natural and seminatural condition, this, you said, 
would contribute to effective endangered species protection, encour- 
age — or discourage ill-considered development and return the gov- 
ernment a measure of public due. This is your marketing approach, 
I presume, to this problem. 

Mr. Frampton. I don't — could you repeat the statement that 

Mr. Cooley. Your statement in the Wall Street Journal in 1962, 
is you said a — I mean 1992. 1962 — ^yes, I have got unwired here. 
When I see Mr. Miller joking with our Chairman, I get a little bit 
unglued here. An3rway, in 1992, you made a statement, a develop- 
ment fee on raw land, land in natural or seminatural condition, is, 
you said, would contribute to the effective endangered species pro- 
tection, discourage ill-conceived development and return to the gov- 
ernment a measure of public due. Do you take this as a marketing 
approach to public land? 

Mr. Frampton. A marketing approach? 

Mr. Cooley. Well, can you give me some idea of what you 
meant? Number one is what is a development fee on raw land? 

Mr. Frampton. I don't remember the context. At that time, I 
worked at the Wilderness Society. But I will say that one of the 
central elements of most of the habitat conservation plans, the vol- 
untary agreements that are now being developed by State and local 
government, involve subdivision fees and development fees, which 
are exactions which are imposed by State and local government 
anyway, but which are increased or in some cases redirected to 
habitat protection. That is true in Washington County, Utah, in 
Southern California, and in a number of other places. Like Texas, 



28 

where these voluntary agreements are being negotiated with Fish 
and Wildlife Service. 

Mr. COOLEY. Well, we are talking about natural or seminatural 
conditions. You suggested all development is ill-considered in your 
view, any development? 

Mr. Frampton. No, I think the statement that you read to me, 
which I don't recall the context, but I think it probably was a state- 
ment about how one goes about structuring both development and 
habitat protection. It is a method that has been used for decades 
by State and local government to do precisely that in connection 
with the subdivision of land that is in natural state. 

Mr. CoOLEY. So that is where you say that the public is due 
some type of a fee for development of this particular parcel? 

Mr. Frampton. I think I suggested that is one way to spread the 
cost of the impacts on the public from subdivision. Obviously, many 
or most State and local governments in this country agree with 
that. 

Mr. CooLEY. When you say impact on, on what? On the subdivi- 
sions, is that what I heard you say? 

Mr. Frampton. Impact of subdivision on natural values and on 
the community as a whole, in terms of sewage and traffic and air 
pollution and water pollution and having that impact and all the 
things that are a part of the local government planning process. 

Mr. CoOLEY. But I thought we took care of that through a tax 
base. I mean that is what our tax development dollars went for, 
that is why we are being taxed at the local level for property taxes, 
in order to comply with the necessary requirements for a civilized 
society. So are you proposing additional tax, additional fee struc- 
ture? 

Mr. Frampton. I am just commenting on the fact that many local 
governments do extract subdivision fees of one kind or another. I 
believe that is correct. I don't pretend to be an expert in the fi- 
nances of local government. 

Mr. CoOLEY. OK. There is a 

Mr. Frampton. Isn't that— is that not the case? 

Mr. CoOLEY. No, that is not the case. I mean that is why we pay 
taxes. What I take from your statement is that you want an addi- 
tional tax for some way to offset something that is not already 
being offset by the tax process that we are presently going under 
at the local level. 

Mr. Frampton. Well, certainly the local communities that I am 
familiar with in various places around the country that are devel- 
oping voluntary habitat conservation plans, or in the case of the 
Southern California counties, they are developing plans that are 
under State law, in a State process, use local planning processes 
already in place, which include various kinds of subdivision fees 
and exactions. 

Mr. CoOLEY. Well, we call those building permits. We call them 
sewer permits and things like that, to cover that. But I understand 
from your statement, it looks like you think the Federal Govern- 
ment should have an extra fee imposed upon development of prop- 
erty. 

Mr. Frampton. I don't know what authority the Federal Govern- 
ment would have to do that. Congressman. 



29 

Mr. COOLEY. One last statement, Mr. Chairman. It is my under- 
standing that the Secretary has the authority, the legal authority, 
to exempt small landowners. In fact, indeed the law allows the Sec- 
retary to lift every one of the ESA regulations for threatened spe- 
cies. 

Is the Secretary, in addressing this problem when we run into 
specific areas of consideration where small landowners are going to 
be some way or another considered in this prospect, such as Con- 
gressman Miller suggested that in small tracts of land that some- 
times the burdening process of complying with the ESA regulation 
just makes the property invaluable, I mean just worth nothing? 

Mr. Frampton. The Secretary has the authority to fairly broad 
discretion to define the extent to which prohibitions will be, for pri- 
vate land, applied, with respect to threatened species. And we have 
committed and will have in the Federal Register very soon a pro- 
posed regulation that in the ordinary case for a threatened species, 
would exempt residential homeowners and private landowners who 
want to develop 5 acres or less of their property. 

We don't have the authority. The Secretary doesn't have the au- 
thority under current law to exercise that kind of flexibility for en- 
dangered species, but we have proposed that that sort of flexibility 
be included in the reauthorization of the Act for endangered as well 
as threatened species. 

Mr. CoOLEY. Thank you, Mr. Chairman. 

Mr. POMBO. Thank you. 

Mr. Dooley. 

Mr. Dooley. Thank you, Mr. Chairman. And, Secretary 
Frampton, in your written testimony, I see where you reference the 
peer review process that the Department is employing now for the 
listing of species. If you could describe that a little bit, is that — 
how is this peer — does the peer review process also allow for con- 
sideration of additional information that is presented by stakehold- 
ers, outside parties, or is it a determination primarily on the infor- 
mation that was presented in the petitioning process? 

Mr. Frampton. The peer review is a policy of having three inde- 
pendent scientists look at the proposed listing package. It is over 
and above all the opportunities that are provided during the com- 
ment process and hearings, if there are any, to the public and to 
interested parties to submit their comments and evidence, and in- 
cluding their own scientific vetting or peer review. 

Mr. Dooley. So then the 

Mr. Frampton. It is additional body of evidence to be taken into 
account in the final decision that is made by the Director of the 
Fish and Wildlife Service whether or not to list. 

Mr. Dooley. So again, just to clarify, is that it would — this 
panel, then, is also charged with considering information that is 
provided during the comment period and scientific information that 
could be challenging the validity of the information that is a part 
of the petition? 

Mr. Frampton. Right now, I believe — it is not a panel, it is three 
separate individual reviews. I would have to get back to you or ask 
someone who is here with me whether that is the case. My under- 
standing is that we peer review the proposed listing package. 

Mr. Dooley. Does that proposed listing 



92-551 - 95 



Mr. POMBO. If the gentleman would yield, please ask. If you have 
somebody with you that could answer that question, please ask 
them. 

Mr. Frampton. Sorry? 

Mr. POMBO. If you have someone with you who could answer that 
question, would you please — ^Rollie has got his hand up. 

Mr. SCHMITTEN. Mr. Chairman, I might just cite how we ap- 
proached it. And when our recovery team, which was a panel of 
seven outside members, prepared their draft, prior to submitting it 
to the agency they sent it out to the academic community and other 
interested constituents, all scientists, for the review, and then sub- 
mitted that final package to us, which we put out for public com- 
ment. So it occurred prior to the agency receiving it. 

Mr. Frampton. Could I ask 

Mr. SCHMITTEN. There is no precedential standing of that. That 
is just the way we did that. 

Mr. Frampton. Could I ask MoUie Beattie to respond? 

Mr. PoMBO. Please, sit up here, please. 

Ms. Beattie. Excuse me for the confusion. Rollie and Mollie have 
this problem all the time. 

Mr. Chairman, the answer to Congressman Doole/s question is, 
yes. We make listing decisions as the law requires us based on the 
best available scientific information. In requesting peer review, we 
submit the available scientific information, whether it be support- 
ive or not supportive of the position that we are proposing. We give 
the whole pile to our reviewers and ask them their opinion. 

Mr. DOOLEY. So I guess, then, to put in kind of a practical con- 
text, who — is somebody making a determination on what informa- 
tion is then presented to the scientists doing the peer review? 

Ms. Beattie. Again, Congressman, we submit the available sci- 
entific information. 

Mr. Dooley. So you are making a determination on what is the 
scientific information that could be passed on? 

Ms. Beattie. No. In our review process, we gather everything we 
can find in terms of scientific information. We use that as the basis 
of our decision. It is, of course, rarely dispositive. There is always 
some doubt. 

Mr. Dooley. So what happened in effect when Judge Sporkin 
threw out the gnatcatcher, was that based on what? 

Ms. Beattie. Based on a dispute over what level of scientific in- 
formation. It was not the circle we drew and said, OK, you can look 
at this, but not that. But we have a practice of accepting, and I am 
going to use this word again, it is going to be confusing, peer re- 
viewed science. 

We do not do primary research, as a rule we go out and find 
what has been published in the scientific journals. These scientific 
journals are themselves peer reviewed, so any article submitted 
has to have been OKed and found sound by a bunch of scientists. 

We rely on that. The question in the gnatcatcher listing was 
whether we should have asked for the raw data behind the sci- 
entific reports that we were reading. 

Mr. Dooley. I guess that is where — I mean I think that is a fun- 
damental issue, is whether or not the validity of the raw data is 
going to be subject to the peer review. 



31 

Ms. Beattie. I am not sure how we are going to come out on 
that, but what the judge said is that people should have access to 
the raw data if they wish to look at it. And certainly that is some- 
thing we could do. In that particular case, the access was some- 
what complicated by the scientists' handling of it. 

Mr. DOOLEY. If I could just continue on. 

Mr. POMBO. Go ahead. I interrupted you. 

Mr. DoOLEY. Then if you are subscribing to a form of peer re- 
view, and we can debate whether or not it is going to be as broad 
in scope as some of us would like, for prospective listings, now that 
the Department is currently required to review the species which 
have been listed every five years, I guess, would the Department 
then entertain a directive through the reform of the legislation that 
those species that are presently listed should be subject to the De- 
partment's new peer review standard? 

Ms. Beattie. Congressman, I would have to look into the practi- 
cality of that. We are talking now about almost a thousand species. 

Mr. DoOLEY. But you are required every five years to review 
every species that is listed now currently, right? 

Ms. Beattie. Certainly, to see if there is more significant avail- 
able information. If a species is listed, clearly new information is 
going to be most important to us. If the species should be delisted, 
if it is information pointing to a reversal of the listing process, a 
delisting, a new delisting would have as much peer review as a 
new listing. So I am not sure that there is a practical problem 
there. 

In other words, if we found information in our five-year review 
that told us that the species was now recovered, or alternatively 
extinct, we would be delisting. And in that process, once again, 
would gather all the available scientific information and that would 
go through a peer review. So there is an automatic trigger in there 
that I think would satisfy the 

Mr. Dooley. I guess it would just be on who is the burden 
placed, should it be — ^you know, some of us would be questioning 
whether or not it should not be the requirement of the Department 
to demonstrate that the scientific data that went into the listing of 
a species should be sound. And I think that is what is leading to 
a lot of people questioning the credibility of the act, and whether 
or not we should not set in place a process where that species are 
listed now should be subject to the peer review, the standards that 
you have established, and if they have the science that is on the 
files within Fish and Wildlife or Department of Interior, so be it, 
that is not a problem. But, you know, once again, to rebuild the 
confidence in the act requiring that those listed species would be 
subject to the same standard that you adopted now. 

Ms. Beattie. Thank you. Congressman. 

Mr. POMBO. Mrs. Chenoweth. 

Mrs. Chenoweth. Thank you, Mr. Chairman. I am interested in 
the listing process. 

Mr. POMBO. If you just delay for a second. 

Ms. Beattie, you can stay there. You don't have to leave. 

Ms. Beattie. Thank you, I think, Mr. Chairman. 

Mrs. Chenoweth. I want to direct my question to either Mr. 
Frampton or Ms. Beattie. You were talking about the scientific re- 



view and the scientific data that you require when listing a species. 
And I want to read to you or just show you a letter from a Roxanne 
Bitman. 

The petition is nine lines long. And she petitions that the Fish 
and Wildlife Service list the conservancy fairy shrimp, the vernal 
pool fairy shrimp, the longhorn fairy shrimp, and the California 
linderiella as endangered species. And this is what comes out of 
your file, nine lines. And that is the scientific data. This is the rea- 
son we are so frustrated. 

There was no scientific research done on the listing of these four 
species, and it did involve private property. So I would ask that 
this is the reason that we are all asking these questions, and all 
so concerned about the lack of scientific data. Now, I do want to 
say that 

Ms. Beattie. Congresswoman, may I respond? Would you like 
me to respond to that? 

Mrs. Chenoweth. Yes, I do, but I want to finish my question to 
you. You did involve a Dr. Belk in the listing of these species, and 
in our hearing in California, Dr. Belk admitted that the vernal pool 
fairy shrimp probably shouldn't be listed, and after all in our line 
of questioning, he did admit that they had survived ice ages. And 
so, you know, I just encourage you so that we can work together 
to look at this specifically, 

Ms. Beattie. Thank you. On the issue of petitions, it is impor- 
tant to distinguish between the piece of paper that has the petition 
itself and what happens when we receive it. That is simply a record 
of a petition coming into us. Regardless of what is presented at- 
tached to the petition, and regardless of the motives of the peti- 
tioner, the science that we use to explore the supposition, we will 
call it, that is on the petition, that something is endangered or not, 
is very thorough and equally as thorough whether it comes in with 
a 32 cent stamp or comes in from a research scientist at Stanford. 

We examine them, we see if they are substantive, and we pro- 
ceed to gather the best available evidence. An enormous amount of 
science goes behind these reviews, about a year, year-and-a-half to 
two years worth of research. 

The petitioners sometimes and often does not submit the science 
with it. It is up to us by law to go and see if there is any substance 
to this proposal. Indeed, in the last five years we have turned back 
75 percent of the petitions we have received. 

Mrs. Chenoweth. What I am saying is that the scientific data 
that was presented was from Dr. Belk, who admitted at our hear- 
ing in California that the shrimp should not be listed, and admit- 
ted that it had survived ice ages. So we really did — we were there 
in the field, we really did examine the files. And so this is — and 
this is stopping a lot of work and harming a lot of private property 
owners. But I thank you for being here. 

Mrs. Chenoweth. But I thank you for being here. 

Ms. Beattie. Thank you. 

Mrs. Chenoweth. I have some questions for Mr, Schmitten from 
the National Marine Fisheries Service. 

As you know, your decisions have impacted my State greatly. I 
think Mr. Frampton and I have already discussed the wolf and I 
am going to let him off the hook on that one. But the listing of the 



33 

sprijig, summer and fall of the chinook and the Red Lake fish, 
sockeye salmon has created a lot of concern in our area, and I know 
you are very, very well aware of it. 

I want to give you an example that National Marine Fisheries 
Service is not working with our people in trying to expedite our 
procedure, and, Mr. Chairman, I would like to ask for unanimous 
consent for an extension of my time for four minutes. 

In 1989, a mine went into operation, the Stibnite Mine. In 1992, 
almost nine years later, the chinook salmon was listed. In 1993, 
the Forest Service concluded that the mine's operation was not 
likely to adversely affect the species. Now, the mine is located on 
private property. 

Your agency refused to accept the Forest Service's recommenda- 
tion and instructed the Forest Service to reach a likely to adversely 
affect determination. Now, NMFS also apparently refused to initi- 
ate formal consultation until the Forest Service did that. These are 
in documents that I have found. 

The Stibnite Mine operation was not allowed to be part of the de- 
termination but they did go ahead and contact the National Marine 
Fisheries Service personnel on numerous occasions in attempts to 
discuss your agency's review and evaluation of the information. 
However, your agency refused to have any discussions with them. 

We have been advised that it is — on a related note, they wrote 
in December of 1994 that we have been advised that it is likely 
that NMFS will have a draft biological opinion this week. That was 
in 1994. It still isn't here. 

We have also been informed NMFS will not provide the company 
with a copy of the draft on the basis that NMFS considers it a 
working draft, not a final draft, and that while the regulations do 
allow the applicant to request a copy of a draft bill, NMFS believes 
that the regulations only apply to a final draft bill. 

I can tell you that this is an example of what is frustrating our 
people in Idaho immensely. 

Now, this company has not been able to operate all of this time. 
It is losing millions of dollars. On March 16th 1995, the Forest 
Service wrote a letter to your agency requesting that the response 
come through in an emergency manner as provided for in 50 CFR 
S402.05. That was 60 days ago and we still haven't heard from you. 

Now, I bring up the issue of the Stibnite Mine because, sir, this 
is happening to hundreds of our businesses, hundreds. Can we re- 
ceive any more cooperation from your agency than we received in 
the past? 

Mr. SCHMITTEN, The latter part of the issue, let me guarantee 
you, yes, you can. It is certainly my approach to work together. Our 
solutions will be so much more founded if we do that, or at least 
we understand each other, where we differ. I don't know the details 
of the issue that you just laid out. I will certainly find out more 
about it. 

As for instance of how we do work. We have had over 400 con- 
sultations now in the Greater Columbia Basin. Only 11 have 
reached jeopardy. Of those 11, we found reasonable and prudent al- 
ternatives to allow the project to continue. 

So in effect, we have not shut down any projects that we have 
gone through the consultation process. It troubles me the scenario 



34 

that you laid out because it is simply not my standard of working 
with people and I will find out about it. 

Mrs. Chenoweth. Thank you. I appreciate your personal atten- 
tion to what is happening to us in the northwest. 

I do want to ask you with regards to the drawdowns of water 
that we are experiencing from our storage pools in order to issue 
this salmon smolt to the ocean, how is it that National Marine 
Fisheries Service can call on the water when the water is owned 
by the State or by the permit holders? 

Mr. SCHMITTEN. Representative Chenoweth, I have lived all of 
my life, 49 of 51 years in the west, and I understand the very 
strong feelings toward both water rights and property rights. We 
have attempted to be very careful in observing the laws of the 
country as we approach the recovery plan. 

I understand that certainly the salmon recovery is affecting 
many of your constituents, Washington State members, Oregon, 
Montana constituents. We have attempted, though, to approach 
this and design a recovery that no one constituency has to pay the 
bill, that if everyone gives something, gives a little bit toward that 
recovery, no one goes out of business, we recover the species, and 
that is what we have attempted to do. 

This will be the second year that the fishermen off the coast 
haven't fished. Certainly your constituents in the drawdown are 
suffering, but if we can get through that together, we will not shut 
down businesses, close down resorts. We just simply all have to 
partner in their recovery. 

Mrs. Chenoweth. Mr. Schmitten, I would like to suggest that 
since the State owns the water or the water right holders own the 
water, that should the Federal agency want our water, then I 
would suggest that you do abide by the State law and either apply 
for it or work through our legislature or work through some lawful 
means, but just simply to call for our water and have it issued out- 
side of our State is something I hope you will soon revisit because 
it is patently unlawful. Even the Supreme Court has ruled against 
that kind of taking by the Federal Government. 

And I would like to say in closing, Mr. Frampton, I was in River- 
side County, California. I was on the land with those homeowners 
who suffered and who lost their homes because of the kangaroo rat, 
and to have an agency say it just didn't happen is part of the rea- 
son those of us in the west are very frustrated. Your agency would 
not allow for the tall grasses to be either grazed or cut and with 
the horrible winds that blow down there in the dry season, the fires 
were out of control. 

I talked to numerous people whose cars caught on fire as they 
were trying to drive out and escape through the fire. I would just 
invite you personally to go out to that area and examine it because 
I can tell you, sir, it did happen. Homes were lost because of the 
kangaroo rat. 

Thank you. 

Mr. POMBO. Mr. Faleomavaega. 

Mr. Faleomavaega. Thank you, Mr. Chairman. I think if I were 
to catch the spirit of the hearing this afternoon, and by the way, 
Mr. Chairman, I do commend you for your leadership and your ef- 
forts in the past occasions that we have had hearings, field hear- 



35 

ings in other States and other jurisdictions, this being the final 
hearing of the task force, I want to commend you and thank you 
for this opportunity that I certainly have in serving as a member 
of the task force. 

But I said, if we were to catch the spirit of what we are trying 
to accomplish here, I think as well stated by Chairman Young and 
Mr. Miller, as well as our Speaker, Speaker Gingrich in terms of 
what has happened over the years, ironically, that the Endangered 
Species Act came about during the Nixon administration. 

Sometimes I think we make false stereotypes that because the 
President happens to be a Republican, they are anti-environ- 
mentalists, and I think that is a real false perception. 

But, Mr. Chairman, my observation to the fact that we have got 
the Federal Government, we have got the local and State govern- 
ments, we have got the private property owners, we have got the 
developers, we have got the environmentalists, we have got the rec- 
reational motorist, put them all together and we got quite a prob- 
lem. 

I was taken by Mr. Kourlis' earlier statement saying we should 
develop a partnership, but I am somewhat taken aback in realizing 
that it is bad enough that we have got five or six different 
groupings constantly at each other's necks when here we have got 
agencies within the Federal Government fighting each other, too, 
and I suggest that perhaps if Mr. Young was here, we ought to get 
a pair of boxing gloves and find out if the Forest Service or the 
Fisheries and Wildlife will endure or serve the better part of find- 
ing out exactly how we should enforce the Endangered Species Act. 

And I just wanted to ask both Mr. Unger, Mr. Frampton, based 
on the concerns expressed earlier by Mr. Young, if you have re- 
solved your differences or is the problem because of some weakness 
in the provisions of the act or is the problem just the stubbornness 
of the two agencies that can't seem to work this problem out as 
stated earlier by Chairman Young? 

I would like your comments on that. 

Mr. Frampton. Perhaps I can clarify that colloquy. Before I do 
that, I would like to say that it is true that wildlife protection and 
conservation, including endangered species protection, has been a 
bipartisan program in the Congress and elsewhere for a quarter of 
a century. 

There may have been some misunderstanding about the discus- 
sion we had. Chairman Young is upset because we are cooperating, 
not because we are at each other's throats. 

It is precisely because we are cooperating and the results of the 
cooperation involve some set-aside of forest, in part to make sure 
that species are not placed on the endangered species list and that 
the wildlife protection aspects of forest management are taken into 
account. It is because we are cooperating that he is unhappy. He 
disagrees with us about the result. 

This Administration has made sure that these agencies do co- 
operate. We have cooperated here. 

We have come to a result which we are both comfortable with 
and which we think keeps species off the list. Chairman Young, we 
have a disagreement with him about the desirability of that result, 
but it is because we are cooperating that he is unhappy. 



36 

Mr. Faleomavaega. Mr. Unger, could you address that because 
I think you were trying to respond 

Mr. Unger. I agree that we are cooperating and that the discus- 
sion on this subject led to some misunderstanding because we are 
working together. I would say the degree of cooperation between 
these agencies and others involved with public land management 
is the best I have seen in many years in Washington and is improv- 
ing. 

I would just like to mention a footnote, and that is the Forest 
Service has to meet the requirements not only of the Endangered 
Species Act, but other requirements, the National Forest Manage- 
ment Act included, which has regulations that require that we as- 
sure the viability of fish and wildlife species within our national 
forests. 

Mr. Faleomavaega. Could you say that — I am sorry because of 
the time — would you say that perhaps the problem lies not with 
the regulators and the enforcers of the law; it comes right back to 
the Congress? 

Mr. Unger. Well, I don't want to say it in those terms. I do want 
to say that we have multiple responsibilities that deal with fish 
and wildlife species that go beyond simply the Endangered Species 
Act. 

Mr. Faleomavaega. Gentlemen, the train is moving and I just 
wanted to ask if the administration plans to offer any proposed 
amendments or any provisions to the Endangered Species Act so as 
to improve — make improvements upon the act. Is there any move- 
ment in the administration to do this while we are in the process 
of drafting or adding or making improvements to the act as well? 

Mr. Frampton. Yes. The administration put forward about three 
months ago a series of proposed changes to the Act that we think 
would make it work better, and take account of some of the prob- 
lems and we are working on some additional possible suggestions, 
but we think we have put forward and offered a common sense rea- 
sonable set of reforms that would make this act work better for 
both species and for the regulated public. 

Mr. Faleomavaega. Just one more question, Mr. Chairman, if I 
may. Just 30 seconds. 

How do you determine when a fish becomes a game fish as op- 
posed to other fish that qualify for commercial sales or use? Is 
there someone there in the fisheries — I have a problem. 

I Have a fish in my district called the wahoo. It is a member of 
the tuna family, and somehow under our laws, because it is a game 
fish, I cannot hack it like tuna. 

Why is this? 

Mr. Schmitten. Generally those rules and regulations are pro- 
mulgated by the States. States manage within 3 miles; 3 to 200 
miles fall within the jurisdiction of the Department of Commerce, 
National Marine Fisheries Service. Therein, if it is a species that 
we manage, those determinations are made by the councils. 

These are federally mandated councils under the Magnuson Act. 
We usually have a list of affected parties knowledgeable and inter- 
ested, fishermen and others, that make the call. 

Mr. Faleomavaega. I am going to call you, Mr. Schmitten. I am 
sorry. My time is over but I am going to call you on this. 



37 

Mr. SCHMITTEN. We will follow up on this. 

Mr. POMBO, Thank you. 

Mr. Hastings. 

Mr. Hastings. Thank you, Mr. Chairman. 

The testimony here today and the questions from all of the mem- 
bers, at least from my perspective, have tended to zero in on spe- 
cific problems, and this is going to be the last hearing of the task 
force. I would like to ask some larger questions in general and I 
would like to direct them, to Mr. Schmitten. 

You were one of those that are charged with managing the En- 
dangered Species Act. Let me just ask you point blank. 

In your opinion, is the act working? 

Mr. Schmitten. I don't know anyone that says that the Act 
should not be improved or modified. Congress and the Administra- 
tion are coming forward with proposals at the same time. I hope 
what we base our decisions on is what we have profited over the 
last 22 years of experience. 

It seems, as the Speaker identified today, that it is a careful bal- 
ancing between species' needs and human needs, and we need to 
become more efficient. We need to have better science in making 
those decisions and we need to be more collaborative. We need to 
include other people in those processes. I think that if we will focus 
our modifications in those areas, we will have a much better En- 
dangered Species Act. 

Mr. Hastings. Well, let me follow up on that because you men- 
tion that the administration is coming forth with some amend- 
ments to the act. Obviously in the testimony we have gathered a 
lot of information. If you were a benevolent dictator, I don't want 
to bestow that on you, but if you were, what is the single most im- 
portant change, amendment that you would make to this act? 

Mr. Schmitten. That is difficult, but let me give you my feeling 
of that. I think that the Act needs to be retooled to focus on pre- 
venting listings rather than reacting after we have listed species. 
Many times we have reacted at a time and in that species life that 
there may not even be a chance to recover. Four Snake River sock- 
eye salmon, three of which were males and one female. 

We need to be much more proactive, and the other thing we need 
to do is allow the States a bigger role in the entire process, from 
listing to consultation to recovery, and we can do that I think by 
funding — in the Section 6 process, funding the States to be a full 
party. 

Mr. Hastings. That is not happening now? 

Mr. Schmitten. That is not happening now. We have the tool 
within the Act. Simply it is not being funded to give the States a 
more paramount position in decisionmaking. 

Mr. Hastings. Is a proactive part part of the amendments that 
are being offered by the administration? 

Mr. Schmitten. Yes. You will see that we are encouraging the 
use of habitat conservation plans. Fish and Wildlife should be com- 
plimented for the work they are doing currently. 

We are catching up and attempting to do the same thing, but not 
only post-listing. I would like to see more prelisting where simply 
we can work with the States or an independent party and say, we 



38 

have a plan which, if we implement, there is no need to list the 
species. 

Mr. Hastings. One of the things that I heard — this issue be- 
came — the Endangered Species Act became a very big issue in my 
campaign last time. In fact, it came so far that there was a sugges- 
tion that two dams be strongly considered to be torn down on the 
Columbia River because of the Endangered Species Act. 

That obviously leads to a little bit of problem with my constitu- 
ents. Nobody, I think, knowingly — and we have heard that testi- 
mony here, even from the Chairman — nobody here knowingly 
wants to see a species be in danger. We don't want to be respon- 
sible for that, but the question still is that I keep getting asked, 
and I think a lot of others are asked, is how much is enough? How 
do we have some certainty that there won't be a cost down the line 
that we will not be able to react to? 

When I go home and say, we haven't been to the Endangered 
Species Act, what sort of certainty would you put into that so there 
is not a threat down the line? We talk about a five — Mr. Frampton 
talked about a five acre threshold. But just talking in general, 
what sort of certainty can we have? 

Mr. SCHMITTEN. Let me answer first and put your constituents 
at rest. We have never proposed, suggested, or conceived shutting 
down, eliminating one of the main stem Columbia-Snake River 
dams. Those are billion dollar facilities that contribute to the life- 
blood of the economy of the northwest. Certainly we expect better 
passage. We expect modifications of those facilities, but to scare 
people to think that we may suggest removing them simply we will 
not and never have done. 

What certainty? That is exactly what landowners need to know. 
And I think that we as Federal managers have to say, if we enter 
into a partnership with a landowner, we enter into a conservation 
plan, our end of that deal is to provide that certainty that we 
would not anticipate, as long as the viability of the plan is working, 
additional requirements on that landowner. 

In fact, if we can forecast other species' needs in that plan, we 
would not even anticipate other listings. 

Mr. Hastings, I want to ask a real quick question. You men- 
tioned a State partnership with the Federal Government. I know 
that some public utility districts in my district are doing some 
somewhat unique things with the salmon. 

Would you envision or would you look favorably upon States opt- 
ing out of the ESA if they had a plan that in your judgment was 
superior to the Federal plan? 

Mr. SCHMITTEN. Absolutely. In fact, that is the purpose of Sec- 
tion 6, that if the States or private sector can put forward a con- 
servation plan that is acceptable to the two action agencies, yes, 
that there is no need to list, and I think that is the bottom line 
question. 

Mr. Hastings. Mr. Frampton, would you answer that question? 

Mr. Frampton, Yes, that is correct with respect to the existing 
law, and to some extent, we have structured situations in which we 
have delegated to the States the authority to take over the admin- 
istration of a recovery plan or the equivalent, but the Administra- 
tion has also proposed that the Act specifically be amended to allow 



39 

individual States, even where a species may cover four or five 
States, to come up with a State-wide plan for one or more species. 
If that plan is the equivalent of the kinds of protections that we 
would be looking for under the Endangered Species Act, then the 
effect of the listing would actually be suspended for that particular 
State. 

So we can do some of that now, but we are proposing that the 
law be amended to specify how that would be done. 

Mr. Hastings. That is part of the amendments that are coming 
down? 

Mr. Frampton. Yes, it is. 

Mr. PoMBO. If the gentleman would yield to me for a second. 

Mr. Hastings, I don't have any time, but I would be happy to. 

Mr. POMBO. Yes, Well, I am the one with the gavel so — and I just 
want to comment on something you said. A lot of times, you guys 
throw up your hands when he makes a statement like tearing 
down dams and you throw up your hands and say: I don't know 
where that rumor ever started, we would never do that. And the 
Secretary of the Interior was quoted as saying — and I am para- 
phrasing because I don't have the quote in front of me — something 
to the effect that he wanted to be the first secretary that oversaw 
the destruction of dams. 

So when his constituents — ^when someone from one of the envi- 
ronmental groups out there or something says something about 
tearing down the dams that his constituents depend on, you can 
see how those get tied together, 

Mr. Frampton. The Secretary was misquoted. He was referring 
to two dams, the Elwa Klines dam, which we were directed by the 
Congress to study for demolition. They are unauthorized dams in 
a national park, 

Mr, PoMBO, I realize that he was not talking about the specific 
dams that Mr, Hastings is talking about, but you can understand 
how his 600,000 constituents get a little bit nervous when they see 
a quote like that and then they start talking about tearing down 
his dams, and there is a relationship between the two, 

Mr, Hastings, Would the Chairman yield for a moment? 

Mr, PoMBO. Yes. 

Mr. Hastings. The chronology of that is not exactly as you say 
it, and I will cite that as of the first part of August, there was a — 
it came from Fish and Wildlife to FERCA— to FERCA I should say, 
regarding specifically the Priest Rapids Dam and the Wanapum 
Dam. Now, this is the first part of August, and they suggested in 
the ESA for reauthorization under FERC that they strongly consid- 
ered removing both these dams because of ESA. That was the first 
part of August. 

It was not until the end of September that the Secretary at Jack- 
son Hole suggested that he would like to be the first Secretary to 
tear down a major dam. Now, I would suggest to you the chrono- 
logical time of that, when I would consider Wanapum Dam and 
Priest Rapid Dam to be two major dams, and about five weeks 
later the suggestion of the Secretary that he would like to be the 
first one to see a major dam removed. And I will tell you this. If 
you compare Priest Rapids and Wanapum with Elwa Dam, there 
is no comparison as to the size. 



40 

And when you say one of them is major, Elwa doesn't even stand 
up to either one of those two dams. So I would suggest to you there 
is some chronological difference there of opinion and frankly, I 
asked the Secretary that specifically at a caucus meeting here. He 
brushed it aside as it was just politics as usual, but I will suggest 
to you that is not at all the case that those along the — in my dis- 
trict felt during the campaign last time. 

Thank you, Mr. Chairman. 

Mr. POMBO. Mr. Thomberry. 

Mr. Thornberry. Thank you, Mr. Chairman. I want to focus just 
a second on a little broader aspect of what you were just talking 
about, and that is the current system of heavy handed regulation 
really puts fear in people and so you get the incentive that is only 
half jokingly referred to as, you know, shoot them, bury them and 
forget it or some variation thereof, and where the incentive is to 
not find some sort of species on your land because it is only going 
to cause you trouble if you do. 

As a matter of fact, the former State Director of the U.S. Fish 
and Wildlife Service in my State of Texas has said that the incen- 
tives are wrong here. If you have a rare metal on your property, 
the value goes up. If you have a rare bird, its value disappears, and 
it is exactly that situation that I think presents the sort of fear sit- 
uation that you have because people are scared about government 
coming in and taking over their land or knocking down dams or 
whatever, and on the other side of that, I think the only solution 
is voluntary, top incentives to get government working with people 
rather than against people. 

Now, I notice in the administration's 10 principles for a new Fed- 
eral endangered species, one of those is create incentives for land- 
owners to conserve species. I guess my concern is, from your stand- 
point, is that the centerpiece or is that something out there on the 
fringes? 

Are we going to have to, in your view, continue to rely primarily 
on regulation, the Federal Government coming in and telling folks 
what they can and cannot do, or can we move to a system that re- 
lies primarily on voluntary incentives and only in highly unusual 
cases revert to the heavy hand of regulation. 

Secretary Frampton, what is your view on that? 

Mr. Frampton. Well, let me try to answer the two or three ques- 
tions that I think you posed. 

To begin with, you are right, that there is an aspect, has been 
an aspect of the Endangered Species Act, that creates a perverse 
incentive to destrov habitat, and we are seeing that in the Pacific 
Northwest where there is concern about private landowners cutting 
private forestland before it gets to be old growth or has the struc- 
ture to support owls for fear that it will attract owls, and before, 
a landowner would want to do that. 

So both in the Pacific Northwest and in the Southeast, what we 
have done is begun to create these safe harbor programs to reverse 
that perverse incentive and to create a positive incentive, to say to 
landowners, if you sustain or enhance habitat and you attract en- 
dangered species, you will be held harmless for eventually driving 
them away or harming them if you cut your forestland or develop 
the land. Because in the meantime, the species will be benefited 



41 

and we will end up being better off in the long run. So that is a 
particular disincentive that we are trying to eliminate. 

The larger question you ask is, do we want to rely more on incen- 
tives and less on regulation? The answer to that is clearly yes, and 
I will give you one particular example, and that is in the Pacific 
Northwest where we are negotiating multispecies habitat conserva- 
tion plans, voluntary agreements with timber companies and with 
the States of Oregon and Washington. 

There, the incentive for them is the opportunity to develop a for- 
est management plan that may last 50 years and not only satisfies 
future Endangered Species Act requirements, the regulation that 
might come at them in the future, but also State forest practices 
and the requirements of other environmental requirements and 
buys 50 years of certainty in the timber program and also buys 
them the opportunity to be good stewards of their land and have 
a timber program that they design. 

So there is a big incentive there for the companies, and from the 
species' point of view or the regulators' point of view, what we are 
getting is a lot more protection for the ecosystem than we would 
be getting through regulation. 

Now, to conclude, though, in the sense of developing incentive 
programs that will cost money, you know, to the extent that we can 
provide incentive programs that reward through Federal dollars af- 
firmative actions to protect species or habitat, we have got big 
problems because there aren't any Federal dollars. So as much as 
we would like to develop and encourage the legislation of additional 
incentives programs, we face some really significant funding bar- 
riers to that and that is a major problem here. 

Mr. Thornberry. I just wanted — I think it is very important to 
recognize that you will never be — ^you and the Congress will never 
be able to hire enough enforcers to be as successful as we could be 
if we had landowners working with the government rather than 
against the government. 

Let me ask one other question in the brief time I have left. You 
talked a little bit earlier about creating exceptions for small land- 
owners, those people who had residential houses of five acres or 
less. I want to just weigh in on this. 

That may be fine for the folks in suburban California, but that 
doesn't help the cotton farmer out there who tries to make a living 
off 160 acres in west Texas, and the idea that there are some spe- 
cial property rights for a small tract owner that do not go to a larg- 
er tract owner I think is a dangerous precedent, and obviously com- 
ing from my district, to have a greater burden on someone who is 
out there trying to earn his living solely off the land and not ad- 
dress his problem I think is going to be a big mistake, and so when 
you are looking at granting exceptions just for the residential home 
owner, I hope you don't forget about the folks who are out there 
trying to earn their living off the land as well. 

I think that is something we have got to address when we re- 
write this bill. Thank you. 

Mr. POMBO. Mr. Metcalf 

Mr. Metcalf. Thank you very much, Mr. Chairman. 



42 

My question, first question will be for Raleigh Schmitten, and 
Raleigh and I were products of the Washington State legislature 
and it is good to have you here back in the other Washington, too. 

The question I have, this is an issue that I brought up at the 
ESA hearing in Vancouver, Washington, and we are deeply con- 
cerned about the rehabilitation of the Columbia River salmon and 
a lot has been said today about the sound science. Sound science 
is absolutely critical. And my question is a little complex so I will 
go over this. 

The National Marine Fisheries Service has considered three dif- 
ferent plans for the salmon recovery on the Columbia River and the 
Snake River systems. Two of these, the Crisp model and the Sam 
model are available for public review, all parts of them, all the cali- 
brations, everything. The third leg of this, the flush model, has not, 
to my knowledge, been available to the public. That is, how they 
arrived, the details, and this is very important. 

While the information from the conclusions of the flush model 
are available, and that says the conclusions, the data used for cali- 
bration doesn't seem to be available to the general public. In light 
of the fact that NMFS has considered the data from the flush 
model, that has been sort of chosen as the one we are going to use 
to rehabilitate the Columbia River, then I get real nervous about 
public policy for recovery efforts on the Columbia and Snake in 
light of the fact that the other two models are reviewed in the proc- 
ess, available in their entirety to the general public, and I would 
like to have you assure me that we can get all — every bit of the 
details from the flush model. 

Mr. Schmitten. Representative Metcalf, I have to dust some cob- 
webs off to remember all the models, but I do remember this. 
About three years ago when there was a controversy of the models 
and the different outputs and inputs, we funded a workshop to 
bring in the community to put all three models on the table to look 
into the bowels of those model to understand exactly what the in- 
puts and the differences so people could evaluate how it determines 
or how it derives the recovery. 

I am not sure the differences between those three. I can assure 
you that I will go back and I will make — I will ask if the flush 
model has had adequate review. If not, I will assure you it will. If 
so, I will provide that information to you. 

Mr. Metcalf. OK. I really appreciate that because I met with a 
professor at the Fisheries Department at the University of Wash- 
ington who basically, we talked about the various models and he 
said he had been trying for months to get that and it was not being 
released, something about the tribes, that they had a part of it and 
they weren't going to release it or something. I don't know. But if 
you can assure me that 

Mr. Schmitten. It potentially could be proprietary if it is held 
by the tribes. 

Mr. Metcalf. What was that? 

Mr. Schmitten. I said it potentially could be proprietary if held 
by the tribes. If I recall, the flush model is the State agency's and 
tribe's model and if the State agencies are involved, it is a public 
document. 



43 

Mr, Metcalf. ok. That is the point I want to be very clear, be- 
cause for my — as my opinion, if it was used as the model to develop 
public policy, it is public and we will get it. Is that — ^you have an 
agreement on that? 

Mr. SCHMITTEN. Yes. 

Mr. Metcalf. We will get the details? Thank you very much be- 
cause we have got a lot of people sort of worrying about this. I real- 
ly appreciate that, Raleigh, and keep in touch with us on it as soon 
as you get information on that with my office. 

Another question, this is mainly for I think Mr. Frampton. How 
many northern spotted owls presently live in the Pacific northwest? 
Do you have any idea? 

Mr. Frampton. I got asked that question yesterday. 

Mr. Metcalf. OK, good. 

Mr. Frampton. In another committee and offered to provide the 
number for the record, and I would do so again. I would just point 
out that the whole conservation strategy for the spotted owl is not 
really based on numbers. It is based on creating these areas. 

We expect that the numbers will continue to go down over the 
next 10 to 15 years, would continue to go down even if another 
stick of timber weren't sold in the Pacific northwest off of public 
lands. 

Strategy is based on creating a system of reserves that eventu- 
ally brings those numbers back up to a stable base, about 15 or 
20 — ^beginning 15 or 20 years from now. But I will supply the best 
numbers we have for the record. 

Mr. Metcalf. OK, and also how many owls would you say are 
necessary to ensure the survival of the species? Frankly, it is my 
opinion that — and everything indicates that it was just poor 
science, very poor scientific data which led to the spotted owl fiasco 
in the Pacific northwest. 

I have information that people have provided to me, there are 
lots and lots of owls. They didn't find them in the deep forests 
where they went looking for them because they took deep forests 
to look in. The fact is they don't live much in the deep forest. 

They live more in the other areas, and that there are a large 
number of owls in that area, and I would like to have — let's get 
some real solid scientific information so that we cannot have these 
stories going around in different ways. 

Thank you very much. 

Mr. POMBO. Thank you. Mr. Frampton, you state in your written 
testimony that some of the ESA horror stories were clearly exag- 
gerated or false, and I would like you to provide for the record 
which of the stories that you feel are clearly exaggerated or false, 
and if that was testimony that we heard on this task force in pre- 
vious hearings that you feel is exaggerated or false, if you could 
provide that for us for the record. 

Mr. Frampton. I would be glad to do that. 

Mr. PoMBO. Also, any member that wishes to submit further 
questions to this panel can provide them to the panel in writing 
and they — and I would request that the witnesses answer those for 
the record and for the individual members that ask questions as 
soon as possible. 



44 

Thank you. Thank you very much for your testimony and for an- 
swering the questions. 

Mr. Frampton. Thank you very much, Mr. Chairman, for your 
consideration. 

Mr. POMBO. I would like to call up our second panel. Dr. Daniel 
Simberloff, Dr. Patrick Kangas, Dr. Terry Maple, Dr. Nicholas 
Wheeler, Dr. Dave Cameron, and Dennis Avery. Thank you very 
much. I appreciate your patience in dealing with the task force. 

I would like to recognize Dr. Simberloff to begin his testimony 
and, again, I remind the witnesses that your entire statements will 
be included in the record, and if you would summarize them to con- 
clude within five minutes, I would greatly appreciate it. 

Thank you. Doctor, you may begin. Welcome 

STATEMENT OF DANIEL SIMBERLOFF, FLORIDA STATE 
UNIVERSITY 

Mr. Simberloff. Thank you, Mr. Chairman, and also other 
members of the committee for letting me speak to you briefly about 
scientific issues relating to endangered species. The problem is, in 
a nutshell, primarily habitat. Over 700 species are listed, and for 
about two-thirds of those, the reason why they are imperiled is 
habitat destruction. 

It is a crisis. Even though species have always gone extinct in 
the past, they are doing so at much greater rates now. One exam- 
ple that makes this point is that about 500 species of plants and 
animals have gone extinct in the United States in the past 400 
years. All but one of those are believed to have gone extinct be- 
cause of human actions. 

Just in the last three centuries, worldwide, we have lost 60 spe- 
cies of mammals and about 120 species of birds, and these are 
groups that we know very well; it is not just a problem of under- 
developed countries. In the United States, we have lost, in the last 
100 years, 18 bird species, 17 freshwater fish species, and over 200 
species of plants, and presently, about a third of all our plant spe- 
cies are imperiled and about 22 percent of our vertebrates. 

What can science do to help deal with this problem? Conserva- 
tion science has developed very rapidly, and I think that conserva- 
tion scientists are now very good at determining the causes of 
endangerment and extinction. I have occasionally heard people 
complain that conservation scientists are the reason for the extinc- 
tion crisis on the grounds that they don't know what to do to save 
endangered species. This really isn't true. Conservation biologists 
generally do know how to save endangered species, but the task 
that is assigned to us isn't exactly that. It is not only how to save 
species, but at the same time to preserve some level of human ac- 
tivity. 

So the considerations are usually primarily economic, sociologi- 
cal, et cetera, not only scientific, and we are asked to figure out 
how to solve them very quickly, often in a matter of a few months. 
I submit that, if physicians were given just a few months to under- 
stand what was causing a disease and figure out a cure and were 
forced to administer the absolute minimum of a pharmaceutical 
that might give a fair chance of survival; then their failure rate 



45 

would be very, very high, but that would not mean that medicine 
is a poor science. 

I think that recent conservation biology teaches five main lessons 
for dealing with endangered species. The first one is the very one 
that is emphasized in the National Research Council report, which 
was released yesterday, and that is the critical role of habitat. 

Because habitat destruction is the main cause of species loss, in 
order to save species, we must protect their habitat. Fortunately, 
many endangered species have the same or very similar habitats, 
so large groups of species can be maintained together in the same 
habitat. Sufficient habitat conservation is going to require lots of 
partnerships among Federal, State, and private landowners. Only 
about 50 percent of all currently listed species occur on Federal 
lands. 

Again, I must emphasize that because many endangered species 
exist in clusters, the same habitat can serve multiple duty for 
many of them. 

The second point that I would like to make is the phenomenon 
I call the "death from a thousand cuts" phenomenon, that is, the 
often-deadly cumulative impact of many small losses of habitat, no 
one of which would seem to be enough to push a species irrevocably 
onto the path of extinction, but that all together are lethal. 

For example, some species consist of groups of populations with 
occasional movement between them. Occasionally a population goes 
extinct and then it is replenished by movement from other popu- 
lations. As we lose populations, we reach a situation in which there 
is no more movement, and the whole species collapses. 

Captive breeding will not help too much in this situation. It is 
much too expensive. In addition, as species are captive bred, they 
become unadapted to life in the wilds. Already, some species can 
exist only in zoos and parks. Some of these take enormous amounts 
of land, like the European bison, a very good example. 

Augmenting natural populations has its own threat, because the 
genes that are brought in by interbreeding the individuals that are 
captive with the wild ones often destroy the adaptations of the wild 
population and often produce the kinds of species we don't want. 
This has happened to the coho salmon, for example, which has 
turned into a wimpy fish because of continued interbreeding with 
hatchery-reared stocks. 

The fourth point is that we must consider population trends, not 
just sizes. It is well recognized that most of the listed species were 
listed when the populations sizes were already very small; the NRC 
report elaborates on this point. In some instances populations that 
seemed quite substantial have seemed to go extinct before we real- 
ly noticed there was a problem. 

All it takes for species to be among the "living dead" is an aver- 
age death rate slightly higher than the average birth rate, and we 
wouldn't see this pattern for a very long time. So we have to do 
demographic studies and this is going to take a while, especially for 
long-lived species. 

My last point is that there are often crucial interactions among 
species such that on a or several species require another species for 
continued existence We often learn about these cases inadvert- 



46 

ently, when one species disappears and we have major problems 
with the entire ecosystem or with other species. 

We do know how to conduct the kind of research that will reveal 
what these relationships are. There is a long tradition of meticu- 
lous experimental work on this kind of problem, but it takes a good 
while, cannot be done very quickly, and is expensive. 

So to sum up, I believe that conservation science can offer a lot 
in designing endangered-species legislation and regulation that can 
help maintain endangered species, but it is not going to give cheap, 
quick answers. 

Thank you very much for your patience. 

[The statement of Mr. Simberloff may be found at end of hear- 
ing.] 

Mr. POMBO. Thank you. Dr. Kangas. 

STATEMENT OF PATRICK KANGAS, NATURAL RESOURCE 
MANAGEMENT PROGRAM, UNIVERSITY OF MARYLAND 

Mr. Kangas. I appreciate the opportunity, Mr. Chairman, to 
present some comments about the Endangered Species Act. I am 
an ecologist and I have conducted research on a variety of aspects 
of ecosystems. 

I do not have any direct experience with the Endangered Species 
Act, but I have worked on modeling extinctions in the tropics and 
I have presented a brief document that tries to receipt that experi- 
ence to the Endangered Species Act. 

Basically, the tropics are where the highest level of biodiversity 
exists on the planet and a very critical area that ecologists need 
to be concerned about. I became interested in the issue of the ex- 
tinction rate in the tropics and discovered that it is a very difficult 
process to quantify and the best science that we have been able to 
do on a large scale has involved models, and this is a rather impre- 
cise approach but is necessary in the tropics where biodiversity is 
very high. 

I think one of the interesting things that has come about in the 
tropics is the very high estimates that have arisen and this has 
alarmed me. I think that to some extent there has been an exag- 
geration of extinction rates in the tropics, and while there is not 
very good scientific data to really say what these extinction rates 
are, I worry that if we do exaggerate these extinction rates, that 
that "may affect the way that we are able to do conservation, and 
I think the critical aspect is that our conservation resources are 
limited and we need to find the best ways to use those limited re- 
sources, and so I am worried about this issue of exaggeration. 

In terms of what is taking place in the United States, I think we 
are in a much better situation. I don't think that extinction rates 
have been exaggerated in this country. 

I think we have a much better handle on our own biodiversity, 
although that is still very much limited in terms of its science also, 
but we are much better off than the tropics in general and I think 
that we can perhaps reflect on the tropical issues and reach a few 
conclusions, one of which, because we have more information, I feel 
that we are obliged to use that in making the best policy that is 
possible. We don't have that luxury in the tropics. 



47 

Also, I think from the tropics, because of the very high diversity, 
I think it is very difficult to work at conservation at the individual 
species level, at which the Endangered Species Act works. I think 
in the tropics, we will be forced more and more, and have been, to 
deal with larger scale levels of hierarchy of biodiversity and I think 
that is one of the directions that perhaps the Endangered Species 
Act should go. And I suggest the landscape level as a very impor- 
tant level of biodiversity. 

And finally, I think that one of the directions of the science about 
tropical biodiversity that we see is shifting away from trying to es- 
timate extinctions, because that is very difficult and also perhaps 
not the best way to do conservation, and an increasing interest in 
sustainable development, and I think this is a very exciting con- 
servation approach. 

In particular, we try in sustainable development to get away 
from the idea of environment versus the economy, and I think the 
comment that was made earlier about under the Endangered Spe- 
cies Act, if you find a rare species, it makes the value of your land 
go down, that is just exactly the opposite of what sustainable devel- 
opment tries to do. 

In this approach, we try to show the value of the biodiversity and 
work with communities to exploit that value through various kinds 
of industries that might market nontimber resources and 
ecotourism and other approaches. So I think there are perhaps a 
few things we can learn from the tropics to improve the Endan- 
gered Species Act and I am pleased from the earlier panel to hear 
that many of those things are taking place. 

Thank you. 

[The statement of Mr. Kangas may be found at end of hearing.] 

Mr. POMBO. Thank you. Dr. Maple. 

STATEMENT OF DR. TERRY L. MAPLE, ZOO ATLA^^^A 

Mr. Maple. I am truly grateful for the opportunity to discuss the 
Endangered Species Act today and the reasons that I support its 
reauthorization. For 20 years I have been a college professor teach- 
ing courses in environmental psychology and animal behavior to 
both undergraduates and graduate students. 

I have taught on the west, where I was raised, at the University 
of the Pacific and the University of California, Davis, and in the 
south at Emery University and Georgia Tech. For the past decade, 
I have been employed as the chief executive of Zoo Atlanta. 

But I spent a fair amount of time as an ivory tower theoretician. 
My recent experience required that I meet a payroll, balance a 
budget, plan strategically, set priorities, recruit and manage talent, 
market a product and make hard business decisions daily. In my 
wildlife travels I have enjoyed pristine wilderness and I have suf- 
fered within the most degraded and dehumanized landscapes. The 
contrast is instructive. 

More than ever, we need to vigorously protect our world heritage 
of wildlife ecosystems. Zoos and aquariums are institutions that 
represent the interests of wildlife and the people who value and 
enjoy it. I manage one of the world's leading zoos, an enterprise 
whose employees work every day to actively share the joy and the 
wonder of wildlife. 



48 

Nearly a million people will visit Zoo Atlanta this year, while 
40,000 households are paid members in our local support group to 
Friends of Zoo Atlanta. Our nonprofit corporation is comprised of 
115 full-time staff, more than a thousand trained volunteers, and 
150 seasonal employees, with an operating budget which exceeds 
$9 million. 

Zoo Atlanta is a cultural institution in the business of managing, 
propagating, exhibiting, and conserving wildlife in zoos, parks and 
reserves. We aim to educate, inspire and provide entertainment 
and recreation for our visitors. 

Zoo Atlanta is also acknowledged as one of America's most suc- 
cessful public-private partnerships. The zoo receives no operating 
subsidies from local or regional governments and a corporate fund- 
raising campaign led by Georgia Pacific chief executive A.D. Pete 
Corell has raised nearly $10 million this year. We are business 
minded, market driven, mainstream conservationists and we have 
significant clout in our community. 

I offer this background to demonstrate that a corporate orienta- 
tion is not incompatible with the protection of wildlife and wildlife 
ecosystems. Our visitors and our corporate donors consistently sup- 
port our programs and our values. 

They are partners in our continuing efforts to educate our com- 
munity about the importance of biodiversity and the permanence of 
extinction. We work to ensure that our children and grandchildren 
will be able to witness beluga whales, giant pandas, mountain go- 
rillas, elephants, salamanders and other living creatures in a State 
of nature. 

We cannot be satisfied to preserve a few specimens in our zoos. 
We must preserve healthy populations of such creatures in their 
range countries. It would be a monumental tragedy if zoos and 
aquariums were to become the last refuge for endangered species. 
And we cannot let this happen. 

We must help to save gorillas in central Africa, whales through- 
out their aquatic range, pandas in China, and elephants in Africa 
and Asia. We must also save our local animals in Georgia, the 
manatees, the wood storks, the indigo snakes and the like. 

Zoo animals can be regarded as effective ambassadors for these 
wild living kin. We are driven to save them for their own sake, but 
we do it also because our community demands it. America's Endan- 
gered Species Act is an important tool in promoting a conservation 
ethic. 

It has been argued recently that we can relax our standards of 
protection because many species now can be propagated in captive 
settings. I am here to report that zoo and aquarium directors are 
the experts on much of captive propagation, and we have concluded 
that captive breeding is not a panacea for the protection of endan- 
gered species. 

It is certainly true that zoos have mightily contributed to saving 
the American bison and the California condor, to name a few. But 
many other species have proved far more difficult to breed in the 
zoo. 

More than 170 accredited zoos and aquariums in America do not 
have sufficient space or financial resources to manage multitudes 
of endangered wildlife. The critical list is simply too long, and our 



49 

technology, too primitive. In the nearly 1,000 organized zoos of the 
world, we estimate that only 1,000 to 2,000 healthy, managed pop- 
ulations of endangered species could be accommodated in the avail- 
able space. 

We will continue to study endangered small populations, to re- 
fine and improve our technology for captive propagation, but we 
must also preserve natural populations and habitat. 

We also recognize that reintroduction of captive-bred wildlife has 
proved far more challenging than we expected, and it may be gen- 
erations before habitat can be sufficiently rehabilitated to accept 
the offspring of rescued wildlife. 

We should not make our stand in zoos. Instead, our first priority 
must be the preservation of wildlife ecosystems. No zoo can protect 
and nurture mountain gorillas as effectively as the Karasoke in 
Rwanda. In this part of the world, turmoil surrounds this national 
park, threatening its survival and the creatures within. But it is 
precisely within this vulnerable ecosystem that our commitment to 
protection must be confirmed. There are only 650 mountain gorillas 
left in the entire world. None of them reside in captivity. 

In some cases, captive breeding is helpful, but it is by no means 
our first priority. The California condor reminds us that this ani- 
mal cannot be separated from its habitat. We have experience in 
reintroducing wildlife, like peregrine falcons, like more land croco- 
diles. It is a challenging process, and we have a long way to go. 

In operating zoos and aquariums in this country, we have 
learned that the public wants to live in a natural world, a world 
abundant with a diversity of wildlife and ecosystems that support 
it. We have learned this by studying our customers, the 120 million 
Americans who visit zoos and aquariums annually. It is the mis- 
sion of zoos and aquariums to contribute to public education, con- 
servation, science and recreation. As zoo and aquarium profes- 
sionals, we strongly agree with the preamble of the Endangered 
Species Act, which recognizes that endangered wildlife and plants 
are of esthetic, ecological, educational, historical, recreational and 
scientific value to the Nation and its people. 

The esteemed conservation biologist, E.O. Wilson, has classified 
our natural resources as biological wealth. His words are compel- 
ling. Native species are a part of our heritage. They are venerable 
almost beyond imagining, present on this land thousands to mil- 
lions of years before even the first Native American arrived. The 
average life-span of a species and its descendents, before humanity, 
was 1 million to 10 million years. 

Each species of animal, plant and microorganism is a master- 
piece, assembled by vast numbers of genetic mutations, tested by 
natural selection, and fitted to a particular niche in the environ- 
ment. Its genes are a library of priceless genetic and ecological in- 
formation, available to us at no greater price than the effort to 
keep the species alive. 

Today, as we contemplate reauthorization of the Endangered 
Species Act, it may be useful to consider the experiences of one of 
America's greatest conservationists, mentioned earlier by Speaker 
Gingrich. I am speaking of Teddy Roosevelt. In his acclaimed biog- 
raphy of Roosevelt, Edmund Morris wrote, for the first time you re- 
alize the true plight of the native American quadrupeds, fleeing 



50 

ever westward in ever smaller numbers from men like himself. By 
1887, the ravages were plain to see. Roosevelt was now in his 29th 
year and the father of a small son. If only for young Ted's sake, 
you must do something to preserve the great game animals from 
extinction. 

Fortunately, Roosevelt was a man of action. His legislative record 
at the State and national level is a monument to his commitment 
to conservation. 

Clearly, endangerment is not a new issue. In fact, we have al- 
ready lost an estimated 1.5 percent of the 100,000 recognized spe- 
cies of American wildlife since the European colonization. There is 
no disagreement among the world's scientists that the pace of spe- 
cies extinction is accelerating. 

The protection of wildlife is never easy, but I believe that we can 
develop a win-win conservation strategy that will work for wildlife 
and for people. If we tinker with the Endangered Species Act, we 
may be able to improve it, but we must be careful not to render 
it ineffective at a time when pressure on wildlife is greater than 
ever before. 

Responsible Republicans and Democrats have offered construc- 
tive criticism of the act as it is currently constituted. We can build 
on this. We also consult our most trusted experts in wildlife, biol- 
ogy and public policy. There is broad agreement that the Endan- 
gered Species Act must be based on sound science, that it must be 
fair and flexible. 

In the American Southeast, for example, the Georgia Pacific 
Company is already engaged in logging while protecting the habi- 
tat of endangered woodpeckers. This demonstrates that industry 
and government can successfully craft policies that will work for 
wildlife and for people. 

I agree with Speaker Gingrich that our policies should be driven 
by incentives and not penalties. Surely we are smart enough to 
make the Endangered Species Act work throughout the Nation. 
Thank you. 

[The statement of Mr. Maple may be found at end of hearing.] 

Mr. POMBO. Thank you. 

Mr. PoMBO. Dr. Wheeler. 

STATEMENT OF DR. NICHOLAS WHEELER, WEYERHAEUSER 

Mr. Wheeler. Thank you, Mr. Chairman, and members of the 
Endangered Species Task Force. Weyerhaeuser Company appre- 
ciates the opportunity to comment on our experience in growing 
yew trees as a source of the anticancer agent Taxol. I would like 
to summarize my written testimony comments. 

I am a senior scientist with Weyerhaeuser Company, and my 
background is in plant breeding and population and ecological ge- 
netics. I have been the principal investigator in our Taxol project 
since 1987. 

Weyerhaeuser is an international forest products company whose 
principal businesses are growing and harvesting trees and manu- 
facturing, distributing and selling forest products. We own and 
manage approximately 5.6 million acres of timberland in the Unit- 
ed States, half of which, roughly, is in the Northwest and half of 
which is in the Southeast and mid-South. 



51 

On April 24th, Weyerhaeuser provided written testimony to this 
committee regarding potential improvements to the ESA. Today, 
however, I wish to speak specifically to our experience in cultivat- 
ing yew species in a nursery setting as a source of Taxol. 

Although the anticancer drug Taxol is a relatively new commer- 
cial product, it has literally been under development for over 30 
years. Today it is considered to be — ^by clinicians, to be a very im- 
portant tool in the chemotherapeutic treatment of ovarian and 
breast cancers, and is showing considerable promise for treatment 
of other tumor types, most of which are still under study. 

Taxol was discovered in the 1960's, early in a survey of plants 
that was being conducted by the National Cancer Institute's Natu- 
ral Products Branch. Of the over 16,000 species ultimately that 
were looked at and some nearly 114,000 extracts derived there- 
from, Taxol is the only compound to have ultimately reached mar- 
ket in the anticancer drug field. Development of Taxol was impeded 
during those years by difficulties encountered in sourcing the 
compound in the wild. 

In 1991, roughly — or early 1991, the NCI awarded a cooperative 
research and development agreement to Bristol-Myers Squibb, 
hopefully to hasten the development of the compound. And in De- 
cember of 1992, the Food and Drug Administration gave new drug 
approval to Taxol. 

Up until December of 1994, the only approved source of Taxol for 
clinical use was from the bark of the Pacific yew. At that time, 
however, Bristol-Myers Squibb received approval of a semi-syn- 
thetically derived Taxol. This is Taxol derived from — through a 
chemical process, converting other similar compounds also derived 
from the biomass, needles and twigs of other yew species. However, 
it is felt by some that there will be continued pressure on the bark 
of the Pacific yew by other companies hoping to enter the generic 
drug business in the future. 

When Weyerhaeuser initiated our Taxol program in 1987, we rec- 
ognized there were several potential alternatives to the use of na- 
tive Pacific yew bark as a source of Taxol. Taxol could be derived 
directly from renewable tissues or biomass of other wild-grown yew 
species, or for that matter, from plants cultivated specifically for 
that purpose. It could be derived semi-synthetically, as I men- 
tioned, from related chemicals, also obtained from yew biomass. It 
could be derived potentially from a cell culture, and of course there 
is total synthesis. 

Weyerhaeuser has focused its attention on nursery cultivation, 
one of our core businesses and areas of expertise. The goal of our 
Taxol program is to provide, through intensive cultivation of yews, 
a long-term, reliable, economical supply of Taxol and other desired 
taxane precursors, for semi-synthetic production of Taxol. We chose 
this approach because we were concerned that a long-term harvest 
of Pacific yew would be detrimental to the species' integrity, and 
because cultivation offers many efficiencies for the production of 
natural products. 

To accomplish our goals, we initiated an aggressive research 
project — program in 1987 and a production program in 1990. Our 
research and production activities have focused on identifying the 
best genetic materials for cultivation, identifying the best tissues to 



52 

harvest, the best time to harvest them, and what environmental 
factors most influence Taxol levels in plants, developing reliable 
propagation and cultivation methods and developing appropriate 
harvest and processing protocols to ensure that the biomass has 
high taxane content at the end of the process. 

In summary, since the start of our yew Taxol program, 
Weyerhaeuser has grown more than 12 million yew trees at nurs- 
eries in the Pacific Northwest. These trees are harvested on a 
three- to five-year rotation, not decades as it takes to grow trees 
in the forest. While we possess the largest genetic collection of Pa- 
cific yew in the world, virtually all of our production populations 
consist of yews of other species. 

We believe that intensive cultivation of selected yew genotypes 
can provide a long-term, reliable and economic source of Taxol and 
a means of contributing to the conservation of worldwide natural 
yew populations through the use of a renewable, sustainable, cul- 
tivated yew resource, managed under strict operational controls. 

Weyerhaeuser's success with cultivating yew and developing al- 
ternative ways to produce raw material for Taxol is but one exam- 
ple of how landowners can address issues of threatened and endan- 
gered species. We have been able to lend our considerable expertise 
gained from decades of research and management of our private 
forestlands to this important effort. 

For the same reasons, the company has been able to develop and 
implement solutions to concerns over wildlife habitat. We feel the 
key to being able to apply these types of solutions is in having 
flexibility in our management of private forestlands and to being 
responsive to changes in markets and external forces and public 
opinions. 

Thank you. 

Mr. POMBO. Thank you. 

[The statement of Mr. Wheeler may be found at end of hearing.] 

Mr. PoMBO. Dr. Cameron. 

STATEMENT OF DAVE G. CAMERON, RETmED WILDLIFE 
GENETICIST 

Mr. Cameron. Thank you, Mr. Chairman. I hope my few words 
will be appropriate and useful. 

Like the gentleman who sat in this chair in the previous panel, 
I am wearing two hats this afternoon. I am a recently retired biol- 
ogy professor from Montana State University, spent much of my 
life trying to examine and interpret the genetic diversity that lies 
within populations of wild species in Montana, Colorado and Wyo- 
ming. From time to time, the investigations of my students and col- 
leagues and I have been useful to State and Federal agents who 
have been attempting to interpret their mandates under the aegis 
of the Endangered Species Act. 

But it is not in the context of a scientist that I am here this 
afternoon. I simply have a little story to tell you. In my role — or 
wearing the hat, if you please — of a free enterprise commercial 
rancher, third generation rancher in the last best place, Montana — 
it is in this context of ranching that I ran up against what I think 
are some unfortunate aspects of the Endangered Species Act that 
I hope can be removed as you consider revisions of it. 



53 

The Camerons have had a long history of supporting and taking 
care of wildlife, sometimes to the consternation of our neighbors 
who think we overdo it. In this wildlife restoration activity that we 
have done — and I hope to continue in this — I had always been con- 
cerned about the absence of a fish, the Montana grayling, from a 
blue ribbon trout stream that runs through our property. The 
grayling is a relative of the salmon, and was in the upper Missouri 
tributaries when Lewis and Clark came through. It is now quite 
rare and limited to just a few tributaries. 

I sought the help of my colleagues at Montana State, who — one 
of them is an expert on the habitat of the Montana grayling, and 
we tromped over the ranch to see if there wasn't a tributary of the 
creek that might prove to be a satisfactory home for the Montana 
grayling. 

Much to my delight, my colleague determined that Elk Creek 
was probably an appropriate habitat and stood a good chance of 
supporting grayling if we took certain measures. It kind of tickled 
me, because he added that this was a better habitat than any that 
Ted Turner had in his 110,000 acres, and if you one-up Ted Turner, 
it is not all bad. 

Anyway, we set in motion, got approval, got the cooperation of 
the Fish and Wildlife and Parks Departments of the State of Mon- 
tana. Friends volunteered, and we felt very well about ourselves, 
we were about to do a good deed. Then one day my colleague came 
to me with a long face and said, Dave, I have got to tell you some- 
thing; it appears that the Federal Wildlife Service is threatening 
to take over management of the Montana grayling. They might list 
it any day now, and you have got to think about the consequences 
of this. 

So I talked with — quietly, with members of the State fish and 
game department, with some Federal people, and asked what the 
worst-case scenario might be. And it was terrifying to me. Seven 
or eight families earn their living through the salaries they earn 
working for us, and I have a brother and sister who share stock 
in this family corporation, and I knew I can't take the chance that 
somebody is going to start telling me how to manage. So very reluc- 
tantly, I withdrew my support for this project. 

And I simply can ask you, ladies and gentlemen, how many 
times do you think this sort of thing has been repeated throughout 
the country? How often have people felt terrified by the con- 
sequences of supporting some poor creature on their habitat that 
they are responsible for managing? I think it is more often than 
you may think. And it is just one more step to proceed from failing 
to do a good deed to worrying about, hey, I have got something 
here which is pretty uncommon, maybe I had better get rid of it 
before somebody declares that it is an endangered species. And I 
know that that has gone on. 

So I request that you get the punishments out of the law and do 
everything that you possibly can to provide incentives to people like 
me and thousands and thousands of others who would cherish and 
harbor these organisms if they weren't threatened by them. 

I have a couple of recommendations that are in my written pro- 
ceedings that I hope you will read. Firstly, I think that ecosystem 
management is a very, very local thing. You must get local people 



54 

together to think about the compromises that must be made to 
achieve certain ends. I belong to a management group that has 
worked for six years. We have a complicated region with a wilder- 
ness area nearby and State game ranges and private land and For- 
est Service and school trust lands. And when we got through pos- 
turing, we realized that we all had a common interest in a healthy 
environment. We all had a common interest in biodiversity. Help 
us to continue in these practices; to promote them. 

My second admonition would be to please practice what you 
preach. I live near Yellowstone Park. It is a grazing disaster zone. 
Any range manager who looks at that shakes his head. If we were 
to manage our lands as Yellowstone Park has been managed, we 
would not only be broke, but we would be subject to ecoterrorism. 
It is awful. 

Thirdly, I would hope that you would use incentives to promote 
what we all want, a healthful environment. They are out there. 
They all don't have to be monetary, but at least get rid of the puni- 
tive aspects of it. 

And then finally, as a scientist, I want to caution you that sci- 
entific communities, societies, are politically posturing. I used to 
belong to the Society of Conservation Biology. A year-and-a-half 
ago, they passed a resolution to the effect that they were passing 
on to Interior the recommendation that some 20 to 30 million acres 
of CRP land should never be grazed. 

Now, that is pure politics. It has absolutely nothing to do with 
science. It is antiscience; it is stupid. I think Dr. Simberloff would 
agree with me. Be careful what you want to hear, because scientific 
communities will tell you what you want to hear, I am afraid to 
say. Just a warning. 

Thank you very much. 

Mr. POMBO. Thank you. 

[The statement of Mr. Cameron may be found at end of hearing.] 

Mr. POMBO. Mr. Avery. 

STATEMENT OF DENNIS T. AVERY, THE HUDSON INSTITUTE 

Mr. Avery. Thank you, Mr. Chairman. As an international food 
and natural resource analyst, I appreciate the opportunity to high- 
light the importance of high-yield farming and high-yield forestry 
in saving world wildlife, and to note that it makes no sense to look 
at wildlife preservation only as a national matter. 

I fear that in that international context, the U.S. Endangered 
Species Act has so far provided only a trivial and wrong-handed ap- 
proach to preserving world wildlife. I am afraid that means the 
problem of saving wildlife species on the planet is even broader and 
more complex than today's discussion. 

The Endangered Species Act, as written, has failed to restore 
threatened U.S. wildlife species and has put even more pressure on 
tropical species. To date, it has thus been a lose-lose proposition for 
wildlife. 

We don't have a choice about feeding humans in the world. If we 
don't grow crops, the people of the Third World have demonstrated 
that they will hunt down every wild creature for the stew pot, and 
then plow their habitat for low-yielding crops. Thus, food produc- 



55 

tion does and will dominate the world's land-use decisions, in addi- 
tion to occupying a third of the Earth's surface. 

Because of America's unique resources for sustainably producing 
food and forest products, the ESA needs to take broader account of 
threatened species throughout the world. To save world wildlife di- 
versity, in fact, the U.S. should probably be producing more food 
and timber and exporting them to other countries. 

Our own biological diversity is small by comparison to many of 
the countries on the planet. While the ESA has focused heavily on 
maintaining subspecies and even minor populations in America, it 
has too often done so by suppressing America's ability to supply 
food and forest products for which tropical forests and wildlife spe- 
cies are being sacrificed elsewhere. 

We have a unique endowment with prime soils and temperate 
climate. When American preservation policies function to increase 
the burden of logging and farming in tropical forests, they reduce 
rather than enhance the chances that we will find cures for cancer 
and other diseases among the wild genes in the rain forests or 
other reservoirs of biodiversity. 

Naturalists agree, and it has been said here today, that preserv- 
ing habitat is the most critical element of preserving species. High- 
yield farming is already saving an estimated 10 million square 
miles of wild lands worldwide from being plowed down for food. It 
takes the land, in fact, with the least biodiversity, because the best 
land inherently has the fewest species on it naturally. Yet our gov- 
ernment policies in this country are discouraging high-3deld farm- 
ing and farm trade. 

The so-called Conservation Reserve has taken more than 20 mil- 
lion U.S. farming acres out of production without creating even 
worthwhile wildlife habitat on them. And when a farm acre in Cali- 
fornia is shut down to preserve the kangaroo rat, the final result 
is probably that it plows down three lesser acres somewhere in the 
tropics. 

U.S. forests have been put off limits to logging without altering 
world timber demand, so the timber has been provided instead 
from tropical forests or from Siberian slow-growing trees that may 
not be replanted. More species might have been protected by log- 
ging more of America's second-growth Douglas fir or fourth-growth 
longleaf pine. 

I would like to emphasize — I can't be as eloquent as Dr. Cam- 
eron, but I would like to emphasize that the command and control 
regulatory approach has turned farmers all over this country into 
fearful enemies instead of conservation allies. Farmlands have 
been effectively seized as wetlands, when they could not possibly 
provide critical wildlife habitat. Landowners who created attractive 
wildlife habitat have often lost the use of their land. 

Command and control has worked indifferently well, even in big 
factories where the regulators could see what was happening. It 
has almost no chance of giving us maximum conservation in the 
world's remote fields, pastures and forests. Like it or not, we are 
critically dependent on the enthusiastic cooperation of farmers, 
ranchers and foresters to save species. 

Thank you. 

Mr. POMBO. Thank you. 



56 

[The statement of Mr, Avery may be found at end of hearing.] 

Mr. POMBO. I don't know where to start here. I think I have 
heard the entire debate on the ESA on this one panel, right here. 

Dr. Simberloff, one of the proposals that has been put before me 
and that a number of biologists and scientists have talked about 
is, again, the need to protect biodiversity, to protect certain "hot 
spots," so to speak, across the country that are biologically diverse 
and to put our emphasis on protecting areas that are as biologically 
diverse as possible. And I think you heard Mr. Avery talk about 
the difference between diversity on land which has been farmed for 
100 or 150 years and other areas which may have more importance 
in terms of their diversity. 

If we were to look at species protection and biodiversity protec- 
tion from that approach, how much acreage are we looking at in 
terms of protecting and what would be a biologically diverse "hot 
spot," for lack of a better term? 

Mr. Simberloff. I agree with the proposal. To my knowledge, 
the data to assess it exist for only one State, the State of Florida. 
The biological survey of the Florida Game and Fresh Water Fish 
Commission has very accurate data on the location of species and 
communities throughout the State, and they are all mapped in a 
geographic information system. These data were used to estimate 
what would it take to save all of the endangered and threatened 
species in the whole State of Florida, and here is the answer: First 
of all, 20 percent of the State is already in Federal and State own- 
ership that has some conservation mandate. It turns out that an- 
other 13 percent of the land area would be required to ensure sav- 
ing every single one of these threatened and endangered species. 
Further, more than half of our listed species — and Florida has 
more than most States — are in a few small areas in a region called 
The Ridge of the State of Florida, where there is a specific kind of 
habitat, and a very large fraction, more than half of the endan- 
gered species, occur only in these small areas. 

A large fraction of the 13 percent that would be required in addi- 
tion to the already government-held land would be for one species, 
the Florida panther. 

So in answer to your question, here is a real hot spot. The total 
acreage would be a few tens of thousands of acres that, although 
a number of species are not included, would encompass more than 
half. of our listed species. 

Until we have a similar analysis for every State in the country, 
we can't give a full answer to your question, but I think it is an 
extremely promising approach. 

Mr. POMBO. And I am familiar with what you are talking about. 
I read some of your work on this and what has happened in Flor- 
ida. Just so I didn't misunderstand you, you said tens of thousands 
of acres— 10,000, 20,000, 100,000? 

Mr. Simberloff. Less than 100,000, more than 10,000, on this 
ridge. There is not that much land left. Many of these species are 
on very small refuges, many of them owned by land trusts or by 
the Nature Conservancy. Much of this land has already been 
turned into citrus grove, and now it is undergoing residential devel- 
opment. So we are talking about a few tens of thousands of acres 
for about half the species that are listed. 



57 

Mr. PoMBO. So if you could take the publicly owned land in Flor- 
ida and redistribute it to what would be the most biologically di- 
verse areas, and you protected that ridge line and put our focus on 
doing that, with the knowledge that we have limited resources — we 
have limited ability to go out and say we are going to protect 100 
percent of every species that exists within Florida, but we want to 
do something to protect the biodiversity of it and redistribute those 
resources so that we could protect the biological hot spots, so to 
speak — that would be a possibility of doing with little or no eco- 
nomic dislocation in the State? 

Mr. SiMBERLOFF. I believe it would be a very cost-effective ap- 
proach. The State of Florida has a large bond issue, as you prob- 
ably know, that generates about $100 million a year for purchases 
for conservation and recreation lands. 

Of course, with the land values in Florida, it doesn't buy as many 
acres as one would think, but every year proposals for purchases, 
including many for conservation, come to this fund, and some of 
the purchases are on that ridge exactly because they will maintain 
a disproportionately large number of species. 

That will be a very cost-effective way to deal with this problem. 

Mr. PoMBO. You know, one of the — I think Dr. Maple may have 
a little bit of experience with this. One of the problems that we 
have in California right now, one of the things that we are going 
through, and particularly in my area, is we have a bird which is 
the Swainson's hawk, and we are on the very edge of its habitat. 
And in fact we are kind of an oddity in its habitat, because the ma- 
jority of its habitat is through the middle part of the country, and 
there is just one little place out in the Central Valley of California 
where it migrates to. 

We are spending a great deal of money mitigating our impact on 
that particular bird. And I would put the argument out there that 
instead of protecting the edge of that habitat, that that money and 
time and effort that we are putting into that may be better spent 
on protecting something else in terms of setting aside a conserva- 
tion area, a biologically diverse area to protect. 

And it may be our focus is mishandled. I think George Miller 
brought this up earlier when he talks about, you know, the moving 
goalposts. You know, when you go in and try to get a permit to do 
something, all of a sudden you are within — ^you are within a new 
habitat area that someone has come up with. And I don't know if 
you have the experience with the birds in San Joaquin County 
when you were out there. 

Mr. Maple. No, I didn't, but I do have experience in setting pri- 
orities, and I think that is really the issue here. The science can 
be debated; you know, everybody talks about sounder science. 

One of the best ideas I have heard yet is this new proposed Insti- 
tute for — National Institute on the Environment, which might pro- 
mote more objective science or what some people think is a more 
objective form of science. I think science is severely underfunded in 
this country, and oftentimes it is hard to find the answers. But, 
you know, if we agree on the science of it, endangerment should 
be an objective process. It then is a matter for all of us to set prior- 
ities. 



58 

And there are tough issues. Sometimes you have to make hard 
decisions, and as you say, you have to weigh the value of this effort 
to mitigate versus protecting something that may be more valu- 
able. And I don't think we can have everything we want. We are 
going to have to make some tough calls. 

Mr. POMBO. You realize — and I am sure you do, Doctor — but 
under the current act, that is not really possible. Because once it 
is on the list, it is — ^you know, regardless of what our priorities are 
that we have established, the list dictates that we have a full- 
blown recovery effort in what in this particular instance is a local- 
ized — ^you know, unique localized species, subspecies. 

And no one actually even claims that it is a subspecies, it is just 
that it is out at the edge of its habitat; it is several hundred miles 
away from where it normally goes. And under the current imple- 
mentation of the act, we don't have the flexibility to say we want 
to concentrate on species which are native to California that we 
have affected because of our development of farming and logging 
and the development of our cities. 

And, you know, we look — he uses the example of Florida. In Cali- 
fornia, we have about 43 million acres, roughly, a little bit more 
than that, but roughly 43 million acres that is owned by the Fed- 
eral Government right now. And of the 43 million acres, about 78 
percent of that is set aside with a permanent conservation ease- 
ment on it. And that is a big part of California. That is a large 
chunk of California. In fact, those figures came before the Califor- 
nia Desert Protection Act was passed. So it is even a higher figure 
than that. 

And, you know, how do we go about reaching out and protecting 
specific areas and change the act so that we can do that without 
the fights that we get ourselves in and the conflict that we get our- 
selves in? Because one of the biggest problems I have with my 
farmers and ranchers out in my area is they don't think it makes 
sense. They don't think that the things they are being asked to do 
or the things they are being told they can't do, they don't think it 
makes any sense. 

I mean, they are experts in biology, the same way you are. They 
have spent their entire lives out on that farm and there is nobody 
that knows more about their farm than they do. 

Mr. Maple. Well, I think Speaker Gingrich is correct, we are 
going to have to get some people in a room and begin to under- 
stand each other a little better. I think you heard a little talk about 
this earlier from the experts and the various agencies. 

From what I have observed — and I talk to a lot of people, I talk 
to a lot of average Americans — everybody understands that these 
are very difficult times for people in wildlife; and you have just got 
to find a way to make these things work. I think it is abundantly 
clear that the conflict that you describe just doesn't work. And as 
you say, people know their land and they have a certain idea about 
how things should work. If that is in disagreement with prevailing 
law, I think you have to find ways, as I said, to make it work for 
everybody. 

It is not going to be easy, and it sounds simple to say that, but 
getting people together is important. And we have just got to work 



59 

it out. It is too important for us to disagree about this, to the dis- 
advantage of the pubUc. 

Mr. POMBO. Dr. Cameron, you brought up something that we 
have heard all over the country in terms of what people's fears are 
under the current implementation of the Endangered Species Act. 
And I believe those fears are very real. I believe that the loss of 
private property is a very real issue under the current implementa- 
tion of the act. 

You said that you went and talked to a number of different peo- 
ple about what the worst-case scenario would be if you introduced 
what could become an endangered species on your property. Can 
you share with me a little bit about what they told you? 

Mr. Cameron. I will try, yes. 

Our stream has some origins in public land, passes through State 
land, and so on and so forth. Their possible scenario was that, 
under some guise or other, our having this endangered species on 
this reach of this stream could give them an excuse — if you wish, 
or whatever — to begin telling us how we should graze, whether we 
should graze, and in other words they would take over manage- 
ment rights to thousands of acres of land, the excuse being that 
they knew how to manage this grayling better than we. 

There are, I think, some examples where this has occurred, and 
I wasn't willing to take the risk. 

Mr. PoMBO. Do you — one of the criticisms that we have heard is 
that these stories are anecdotal stories that are clearly exaggerated 
and false, and they just can't be true. And I think that — and I real- 
ly do appreciate your being here with your experience to share that 
with us, because 

Mr. Cameron. May I say that the perception itself that this can 
occur has profound consequences on how people behave. And, you 
know, when I read in the last stock journals that somebody is being 
fined $5,000 because of a couple of birds that drowned in a stock 
watering tank, I think, God, there has got to be a better approach 
than that, there just has to be. 

Mr. POMBO. I agree with you. 

Mr. Cameron. Many things, many solutions are very simple. We 
have Boy Scouts, we have all kinds of people who would be willing 
to help. The wood duck — at one time apparently there were more 
wood ducks in captivity in England than living wild in the United 
States. It turned out they needed nest boxes and people started 
hanging nest boxes. Now they have hung nest boxes in South Da- 
kota, we have got wood ducks where there were no wood ducks be- 
fore. And it is simple things like that. 

Also, I think you have got to be very careful about national legis- 
lation that purports to manage things at a micro level in any way. 
It just can't work. We found in our experiment with cooperative 
management of a quarter of a million acres that it was largely an- 
cient rules and regulations within the State that were preventing 
us from using imaginative solutions to the problem and bringing 
people together. 

Get rid of the rules and open up opportunities for people to get 
together. There is a lot of goodwill out there. Some of it has been 
frustrated by the laws, but there is a lot of goodwill among land- 
owners. And we are all aware that we are part of the solution. 



60 

I was a little alarmed by the notion that the entire onus for sav- 
ing the world is going to be placed on the larger landowners. These 
85 percent of the people who are off the hook are the ones who 
saturate their lawns with pesticides and on and on and on, and 
waste water on Kentucky bluegrass and pave the streets and on 
and on and on. 

They are not off the hook, in my opinion. They should be asking 
me, what are we doing right and how can we encourage other peo- 
ple to continue in these practices. 

Thank you. 

Mr. POMBO. Thank you. Mr. Gilchrest. 

Mr. Gilchrest. Thank you, Mr. Chairman. Dr. Cameron, I was 
disappointed to hear that you taught at Montana State, because 
my son goes to the University of Montana in Missoula. So 

Mr. Cameron. I am in trouble. 

Mr. Gilchrest. But he has to pass right by your school to get 
there, and you do live in a pretty part of the country. And I cer- 
tainly — I am very positive that we can develop an act, a law that 
encourages people to participate in a voluntary manner, encourages 
Boy Scouts to come out and pass these little — maybe put some of 
those little fmgerlings into your stream and encourage — it is going 
to take people from the Federal Government, the State govern- 
ment, the local government — more importantly, it is going to take 
all people to want to participate in these programs. 

A wood duck landed in the liner of my chimney to my wood stove 
one time, and he fell right down into the — in the chimney. I 
thought it was a rat in there; not a kangaroo rat, I don't think we 
have them in Maryland. But we lifted the stovepipe out, and sure 
enough, it was a creosote-soaked wood duck. And we let him go. 
Then we put a little screen on top of the thing so it wouldn't hap- 
pen again. 

I have a question — and I really do appreciate your testimony, be- 
cause it is a matter of education and cooperation and everybody 
joining hands. What can we do to help each other so nobody has 
to be fined or worry about doing what you are doing? And I hope 
we can create an act so within a year's time you can put some of 
those fish in your stream. 

Mr. Cameron. I hope so, too. 

Mr. Gilchrest. I have a question about — ^this thing is annoying. 
I have a question about, since I see that you are a geneticist, could 
you give some indication — and I am not sure what your field is — 
as to the importance of diversity as far as agriculture is concerned, 
whether it is dealing with hybrid com and introducing a new gene 
pool, or a variety of grain crops? 

Mr. Cameron. Well, it is certainly true that resistant genes for 
alfalfa crop, for grain crops and whatever, have been found 
throughout the world and in natural species of plants, which are 
near relatives of the predecessors of our cultivated plants. And I 
think we should survey the world and obtain as many seed stores 
of these things as we can. 

The world is becoming more and more dependent on fewer and 
fewer crops. And I think we could be setting ourselves up for prob- 
lems, but we have dealt with them in the past and v/e will deal 
with them in the future. Your question — I think I must answer 



61 

that we should be careful in conserving the ancestral stocks of 
these grains and cereals and crops that we rely upon, yes. 

Mr. GiLCHREST. Thank you. 

Dr. Avery, this is yours, I guess, and it is fascinating. I would 
like to — and I haven't read it in its entirety. I haven't read it in 
its entirety, because I just got it while I was up here. I found it 
very interesting. 

I would just say, sort of— we have had some people defend their 
States, so I am going to sort of defend my district on the Eastern 
Shore of Maryland. 

The CRP program has been an enormous success, especially be- 
cause of the migrating Canada geese that come down and light in 
those particular areas. And I know it is different in different areas, 
and any program can be abused. But I just throw that out there. 

The other thing is, you have — ^you have a very good explanation 
here for organic farming and why it is very difficult, and we can't 
have organic farming all over because there is the need for a good 
amount of organic material. But what I would say is, there is a 
farmer in my district that farms about 800 acres of grain crops 
using nothing but organic material. 

Now, there is an advantage where he is, because we have Perdue 
farms down there, so he uses a lot of chickens, a lot of eggshells, 
a lot of chicken manure, and all the brush that the county can give 
him. And so consequently, he has rows and rows and rows — 100, 
200, 300 feet long, 20 or 30 feet high— of organic material. So I 
guess if we could do that for a number of other farmers, that cer- 
tainly would be possible. 

But his yield is consistently higher than the yield of the more 
traditional farmers that use and have to use, out of necessity, a lot 
of the chemical fertilizers and pesticides and things like that. And 
I hope I can get a little more time, because I will — I do want you 
to respond to that, if I may have a little more time. 

Mr. Avery. The United States, according to USDA analysis, has 
less than 30 percent of the organic — of the nitrogen that would be 
needed to support current output, let alone tripling world food pro- 
duction, for the 21st century. And we are richly endowed. As a 
world, we probably have only about 20 percent of the organic nitro- 
gen that would be needed to support current output. China tried 
this under Mao Tse-tung and it was a dreadful failure. They in- 
curred the worst soil erosion they had ever seen, along with exten- 
sive malnutrition. 

We simply don't have it, and the only practicable way to get it, 
to get more organic nitrogen, would be to commit more land to leg- 
ume crops like clover and alfalfa. And if you are talking about 
plowing down 10 million square miles of forest land just to get clo- 
ver and alfalfa, I don't think it is a good trade. I think we lose far 
too much in environmental resources. 

Mr, GiLCHREST. No, I think you raise a good point. But where it 
can work, I think there should also be some incentives to encourage 
it. 

Mr. Avery, Organic farming is in a sense its own incentive, be- 
cause its costs are — ^for inputs, are relatively low, I don't particu- 
larly have any — I don't own any chemical company stock, and I am 
not pushing chemicals. What I am pushing is high yields. Because 



92-551 - 95 



62 

the less land it takes to produce the world's food supply, the more 
land we have left over for wildlife habitat. And on a global basis, 
this is a huge number. 

Mr. GiLCHREST. Dr. Maple, I am going to sort of— anybody else 
can answer this question, out I will direct it initially to Dr. Maple. 

Sometimes when we debate the Endangered Species Act and a 
speaker says it should be referred to as the '^biological diversity 
act," we are sort of comparing apples and oranges. There have been 
grievances in the past with abusive regulators and grizzly bears 
eating people's sheep and being concerned about whether or not we 
should put fish in our streams or a whole range of things. So I 
think the regulations can be adjusted to meet the needs of people. 

But I just wanted to ask a question that dealt, pure and simple, 
with biological diversity. And I think that is coming out through 
the hearings that Rick has held over the past several months; and 
people are beginning to understand, I think, a balanced approach 
to this particular act so that we can save two things. 

One is — and I don't want to sound like an alarmist, and I know 
in some of the testimony environmentalists do often sound like 
alarmists, but I don't know if I have a reputation around here to 
be an environmentalist or not — but one is to save the biological di- 
versity of the planet, not only in the United States but around the 
world, we can set a pretty good example. And the other is to allow 
people to be a part of this solution. 

The question is, in general terms — and I know we don't have a 
lot of time; could you give a very succinct, I guess, definition of 
what an ecosystem is and why or why isn't diversity important in 
an ecosystem? And then, is there a connection to ecosystems, 
biodiversity, and the climate of the planet? 

Mr. Maple. Well, I am a psychologist, so the first thing you have 
got to know is I am a psychologist. So if there are any biologists 
in here that are willing to take that one up? 

I don't think we have got enough time to answer that question. 

Mr. PoMBO. Yes, I was going to say, we are going to be here all 
night. 

Mr. Maple. But let me make one tiny comment about it, about 
biodiversity. 

You know — and it is instructive that I am a psychologist, because 
I can tell you that promoting a lot of wildlife, like snakes and in- 
sects and creatures like that, especially those that cause people 
harm, is a very difficult process. I welcome an opportunity to pro- 
mote ecosystems or biodiversity, because it is a lot easier to do 
that, in my opinion, than it is to promote some of these other crit- 
ters. 

Some of the problem with the Endangered Species Act has sim- 
ply been that the animals themselves that have been troublesome 
have not been very highly regarded by the public. If an animal is 
a bald eagle or a giant panda or a mountain gorilla, you don't usu- 
ally have an argument. So it is a very difficult process to preserve 
the whole chain of being, the whole web of life. And certainly if you 
have a balanced ecosystem, my view would be that if you protect 
that ecosystem, you are protecting biodiversity. 

How that interrelates, you know, to the planet in other ways — 
climate, et cetera — again, I would pass the baton to other experts. 



63 

Mr. Cameron. Could I comment? 

Mr. SiMBERLOFF. Well, the answer to your question about climate 
really couldn't be given here. About your first question, on the defi- 
nition of biodiversity, the relationship of species biodiversity to eco- 
system function, the congressional Office of Technology Assessment 
put out a document on biodiversity that adopted the definition that 
scientists generally use, that it entails genes, species, and 
ecosystems. 

As for the relationship of biodiversity of species to the health of 
ecosystems, that has become a subject of great interest, obviously, 
quite recently, and there are several ongoing studies. The first cou- 
ple were published quite recently and show some relationship be- 
tween the number of species and some indicators of what we think 
of as ecosystem health, like the rate of nutrient cycling and pat- 
terns of energy flow. But this is really a very active area of re- 
search right now, undoubtedly for the very reason that you are ask- 
ing the question. I feel sure that, five years from now, probably 15 
studies will have been published. For now, I think there are two. 

Mr. GiLCHREST. Dr. Cameron also had a comment? 

Mr. Cameron. Yes, I think it is possible to confuse the issue of 
the interaction of organisms in an environment and their inter- 
dependence. These are quite separate things. 

Darwin was talking about interaction and how they mold each 
other, but the Earth has taken some awful hits in the past. The 
Cretaceous was mentioned this afternoon, in which 80 to 90 per- 
cent of the species of marine invertebrates were eliminated, and 
yet I don't think there was any detectable change in the atmos- 
phere as a consequence of this. 

I think it is a terrible commentary on human beings that we are 
decimating populations, but I don't think the sky is falling because 
we are losing these species. E.C. Pielou, a noted ecologist in British 
Columbia, wrote a book. After the Ice Age. And in this she tells 
how organisms returned following the retreat of the ice. And they 
didn't return as communities; they returned, marched north one by 
one, and sometimes thousands of years separated plants and some 
of their insects that live on them, that we now think are dependent 
upon each other, but they obviously aren't because they got there 
separately. 

Though I agree with Dr. Simberloff, that we have to look into 
this much more, I think that we can overstate the crisis at this mo- 
ment and, in response to this, do things which are absolutely det- 
rimental to the whole process that we are trying to keep going. 

Thank you. 

Mr. GiLCHREST. Thank you. 

Mr. POMBO. Mrs. Chenoweth. 

Mrs. Chenoweth. Dr. Cameron, I am interested in following up 
on your statement and your thinking there and probe a little more. 

You stated there is interaction and interrelationship. 

Mr. Cameron. Interdependence. 

Mrs. Chenoweth. Interdependence. Do you feel that maybe that 
is where some of the problem is, and understanding and confusion 
comes, with terms like biological diversity and ecosystem, because 
we try to manage it? I mean, ecosystem management, by definition, 
may be trying to manage the interaction of an action that may hap- 



64 

pen on one part of the planet with a relationship with what may 
happen in another part of the planet. 

Mr. Cameron. I am not sure exactly what you are saying. I 

Mrs. Chenoweth. Let me try to make myself 

Mr. Cameron. I do think that we have to have objectives, and 
that we can manage for these objectives. And there are examples 
of this. Kruger National Park in South Africa is one that manages 
for biological diversity, and it doesn't just let things go. It bums 
and it harvests, and it actually sells and makes a profit off some 
of its elephants and whatever. And there is no sin in that, OK? 
And so we should set objectives and manage toward them, but we 
should be reasonably certain that these objectives are the best pos- 
sible objectives. 

Mrs. Chenoweth. I really appreciate what you say. But I think 
we are nailing down the problem of the polic3anakers, the imple- 
menters and the scientists. And, you know, my feeling is. Doctor, 
that unless we have a reasonable area that is well defined to oper- 
ate and manage within, then it creates utter chaos in the decision- 
making process. 

Mr. Cameron. I have sympathy with what you are saying, yes. 

Mrs. Chenoweth. Dr. Simberloff, I have studied your testimony. 
I am sorry I wasn't here to hear it, but how old is the law of spe- 
cies area relationship? 

Mr. Simberloff. It was first articulated in the early 19th cen- 
tury by an English botanist examining plants in difi'erent counties 
and islands in the British Isles, and he pointed to this regular rela- 
tionship between area and the number of species. So it goes back 
about 180 years now. 

Mrs. Chenoweth. Well, in science, what is law? 

Mr. Simberloff. This is an empirical law. It simply says that 
when we look over and over again, we see a relationship of this 
sort. 

I should add that it is a law that has a lot of variation around 
it. A study done by two of my students looked at a hundred sets 
of sites, measured species-area relationships, and found that area 
explains about half of the differences in the numbers of species. 
Many other factors contribute the other half, but by and large, 
whenever people look, empirically, this is what they find. 

Mrs. Chenoweth. You know, I think we are defining what the 
problem is, because we don't have absolutes to deal with, and when 
the politicians and the polic5rmakers and the enforcers try to deal 
with nonabsolutes, that is where we run into the trouble. 

Can you define for me what biological diversity is? 

Mr. Simberloff. What biological diversity is? 

Mrs. Chenoweth. Yes. Can you define it for me? 

Mr. Simberloff. I believe the definition in the congressional 
OTA report is the one that is widely accepted by scientists and by 
me: the numbers of entities at three levels — genes, species, and 
ecosystems or communities. 

Mrs. Chenoweth. What are ecosystems? 

Mr. Simberloff. An ecosystem is the sum of all of the species 
that make up the biological community, plus the physical environ- 
ment in which that community is embedded. 



65 

Mrs. Chenoweth. Could genes be in, say, space? Are there mol- 
ecules in space? Are there 

Mr. SiMBERLOFF. Well, of course, these are hierarchical: genes 
are in organisms and then organisms are in ecosystems. 

Mrs. Chenoweth. Can you see our frustration in trying to make 
these concepts manageable? 

Mr. SiMBERLOFF. I certainly can. I thought that the congressional 
OTA report did a great service by clarifying, to some extent, what 
has been a very fluid concept. I have heard the term biodiversity 
used in many different ways, but I urge the task force to go back 
to that OTA report and stick to that no matter how other people 
choose to define biodiversity. 

Mrs. Chenoweth. Dr. Maple, I realize that you are a psycholo- 
gist, but I have some questions. 

You said in the News Tribune on February 27th of 1994 the fol- 
lowing about privatization of Zoo Atlanta: You said, "Cities don't 
know how to run zoological parks. With privatization, we got au- 
tonomy as a business. There is cost and quality control, and we can 
shoot for excellence. It is just hard-nosed people saying, how do we 
get the bread out? Public-private partnerships can help cities," you 
write, "and help zoos get better. It allows zoos to do what a com- 
pany does best, and that is free enterprise and government to do 
what it does best, which is to serve the public." 

Dr. Maple, given what you have accomplished with privatizing 
Zoo Atlanta, shouldn't this lesson also be applied to how the ESA 
is implemented? 

Mr. Maple. Well, I think there is a lot of room for public-private 
partnership in conservation. I sort of walk in the middle. We have 
a lot of industry friends. I have a lot of environmental friends. 
Maybe I am the right mediator for this conversation, but I do be- 
lieve that we have partnerships, and we are engaged in them now, 
and they are working. 

I mentioned the example of Georgia-Pacific Company working in 
the Southeast to save woodpeckers and continue their business. I 
think those are the kind of strategies we ought to work for. Zoologi- 
cal parks are used to this process. I think that — I know this. I have 
worked in government. It can be a rather difficult thing to work 
within when you are entrepreneurial. 

I would like to suggest we need some entrepreneurial conserva- 
tion. Zoos are good at that, and there is nothing in what you say 
that would make it difficult for me to agree that in the climate of 
business leaders and conservation leaders getting together there is 
no reason why we can't find ways to make this act work, and I 
think public-private partnerships are instructive in this regard. 

Mrs. Chenoweth. Doctor, your zoo does have endangered species 
in it? 

Mr. Maple. Yes, we do. 

Mrs. Chenoweth. Do you have a section 10 permit, section 10, 
a taking permit under the ESA? I hope you do. I really hope you 
do. 

Mr. Maple. Are you suggesting that 

Mrs. Chenoweth. No, no, no. I am just suggesting you check 
with your staff and make sure you do. 



66 

Mr. Maple. Listen, I want to tell you that I have a lot of sym- 
pathy for the problem of dealing with the bureaucracy of 
endangerment. I am having a little bit of a dispute with some of 
my friends right now about reintroducing the indigo snakes onto 
land where the animals previously lived, and I have not been per- 
mitted up to now to actually do this because some of the experts 
have suggested that we really don't need a captive propagation pro- 
gram, and I regard this as a fine technicality which really begs the 
issue. 

So I have been there. I understand what you are saying. We have 
got to find a way to make sensible decisions in conservation. There 
is an awful lot of complication to this whole thing. I guess I can 
understand how it evolved that way. But I think we are in a period 
now where there is an opportunity to make some refinements to 
make these things work better. And I, for one — and I really hear 
almost nobody in the environmental movement who doesn't appre- 
ciate the fact that we have overbureaucratized and overmanaged 
this whole system. 

Mrs. Chenoweth. Well, Dr. Maple and gentlemen, I have stud- 
ied your testimony, and I want to thank you so much for what you 
have invested in this process. And I really wish I could sit and 
learn from you, all of you, but I know that we will be back in touch 
with you because your knowledge and expertise is so important to 
all of us. This is such an incredibly deep problem, as we found as 
we held hearings across the Nation. 

So, you know, personally, I just want to thank you very much. 
I wish we had the full committee here because I wish they had ei- 
ther studied your testimony or heard you because it is extremely 
valuable. Thank you so much. 

Thank you, Mr. Chairman. 

Mr. GiLCHREST. Mr. Chair, if I can just have a second. 

I want to echo the sentiments of the gentlelady from Idaho and 
welcome everybody here, especially Dr. Maple. I have met you once 
briefly in the past, and we had a stimulating conversation. And Dr. 
Kangas from the University of Maryland, which is one of our excep- 
tional places in this great State, welcome to Washington, D.C. 
Thank you all very much. 

Mr. POMBO. Thank you. 

Before I excuse this panel, I would like to make just a couple of 
points, You come at this, for the most part, as scientists from your 
perspective in protecting biodiversity, your perspective from the sci- 
entific viewpoint. 

We are policymakers. We are legislators. And we have to not 
only consider the scientific implications, we also have to consider 
the very real economic and sociological considerations that make up 
our job. And when we started this process several months ago, we 
wanted to, as the Speaker mentioned in his testimony, bring every- 
body together and have them actually listen to what the other side 
is saying. 

Unfortunately, that hasn't really begun to happen until the end 
of the process. Because everybody came into this fight with the 
long knives drawn and loaded for bear, and we had people who tes- 
tified from every perspective on this, and I think that those who 
benefited from this process that we have gone through actually sat 



67 

and listened to what the other side was saying and actually started 
to pay attention to what the other side was saying, in that we do 
have some very real conflicts that don't necessarily have to be 
there. And I think that if— you know, we have heard the comment 
that this is not a partisan issue, that it is a bipartisan issue. 

Well, if you listen to what we are actually saying, instead of 
maybe what the reporters have said that we said or what some 
people have said that we have said and actually listen to what we 
are saying, maybe we can find that there is more common ground 
than you ever imagined in trying to solve this problem. 

And I think that it is extremely important, as we move — it shall 
continue to move through this process, that we do actually pull 
from each other's experiences and what we have brought to this de- 
bate. And I was very encouraged to hear George Miller in his state- 
ment because it shows that he has actually listened to some of 
those people that have had problems, and I think that we need to 
do that so that we can find a way to develop an Endangered Spe- 
cies Act that actually works and is supported by the people. 

Thank you all very much for being here, for your testimony. 

I would like to call up our third panel. Dr. Gene Wood, Dr. Tom 
Cade, Robert Gordon and Dr. William Brown. Thank you very 
much. I appreciate your patience in sticking with us, but this is ex- 
tremely important and we need to get through. 

STATEMENT OF GENE WOOD, SOCIETY OF AMERICAN FOR- 
ESTERS, CLEMSON UNIVERSITY, CLEMSON, SOUTH CARO- 
LINA 

Mr. POMBO. Dr. Wood, you are recognized. Thank you. 

Mr. Wood. Mr. Chairman, I appreciate the opportunity to appear 
before the Committee on Resources to offer the viewpoints of the 
Society of American Foresters (SAF) and its opinions on reauthor- 
ization of the Endangered Species Act of 1973, as well as my 
thoughts on this matter. The official position of SAF on reauthor- 
ization of the Act is attached to my comments which I ask you to 
include in the record. 

As a Clemson University professor of wildlife ecology, I have 
done research on endangered species, principally the red-cockaded 
woodpecker, since 1975. I have also worked as a management con- 
sultant to a substantial number of private forest landowners deal- 
ing with listed species timber issues. 

As a consultant, I have not only dealt with red-cockaded wood- 
pecker issues but also in designing and overseeing extensive sur- 
veys for the gopher tortoise in Mississippi and the Karner blue but- 
terfly in Wisconsin. As these efforts are all conducted on commer- 
cial forest lands, they are all aimed at the development of conserva- 
tion strategies that will be both ecologically and economically 
sound. 

The Georgia-Pacific RCW plan has been referred to several times 
here this afternoon. I was the senior author of that plan. I also de- 
veloped the initial concept for what we believe will be the first 
State-wide habitat conservation plan (HCP) in the United States 
and would apply to the Karner blue butterfly in Wisconsin. And I 
am a member of that HCP team and a consultant to Georgia-Pa- 
cific and other forest industry members participating in that effort. 



68 

Based on my research and management experience, I would like 
to state briefly several points that I consider to be fundamental to 
the deliberations on reauthorization. 

One, the conservation of imperiled species is a value of high pri- 
ority to our Nation and its people. 

Two, in the history of our Nation, no conservation step has ever 
had economic and sociological consequences comparable to those as- 
sociated with the listing of a species as threatened or endangered. 

Three, the listing of a species should be considered an ultimate 
step to be taken only when it has been clearly demonstrated that 
no other measures are adequate to prevent the extinction of that 
species. 

Four, the American public has trusted that the sound and thor- 
ough science has documented the necessity for each listing. Yet 
thorough science rarely has been available at the time of any list- 
ing and often remains inadequate, even during recovery planning. 

Five, because an increasingly large percentage of listed species 
occur scarcely or not at all on any public lands, private landowners, 
who own 67 percent of the American landscape and 72 percent of 
the American forest, bear a greater burden for listed species con- 
servation than does any other single segment of our society. 

Six, the command and control mode of conservation on the part 
of the Federal Government has almost certainly had economic and 
sociologic consequences far greater than anything intended or fore- 
seen by the original act sponsors. These impacts have led to criti- 
cally important anti-conservation sentiments regarding listed spe- 
cies, especially where they occur on private lands. 

Seven, the Congress must be explicit in its instructions to the 
Secretaries that conservation guided by sound science must be inte- 
grated into the socioeconomic fabric of our democratic and capitalis- 
tic system. To do otherwise would require an increase in the police 
action mode of conservation and may politically imperil the most 
fundamental purpose of the act, the prevention of extinctions as a 
result of inappropriate relationships between humans and other 
ecosystem components. 

Thank you, Mr. Chairman. 

Mr. POMBO. Thank you very much. 

[The statement of Mr. Wood may be found at end of hearing.] 

Mr. PoMBO. Dr. Cade. 

STATEMENT OF DR. TOM J. CADE, THE PEREGRINE FUND, 
BOISE, IDAHO 

Mr. Cade. Thank you, Mr. Chairman. 

I am also a retired professor — they are the best kind — and I also 
happen to be the founding chairman for a nonprofit conservation 
organization called the Peregrine Fund, which is headquartered in 
Boise, Idaho. I have been asked to talk specifically about the sub- 
jects of captive propagation and translocation and other similar — 
what we refer to as hands-on procedures — in attempts to restore 
endangered species. 

In my prepared statement, I have presented this information 
pretty much from the point of view of my own work and that of 
my organization; but I can't cover 25 years, obviously, in five min- 
utes, so I am going to make just a few quick general points. 



I have submitted to the committee some other supporting docu- 
ments, articles and papers and so forth that I would recommend 
to you and your staff to consider. I was going to bring a book that 
I have been trying to get on the Speaker's list of recommended 
readings for the Congress, but, unfortunately, it is a thousand 
pages long, and it might be a bit too much for you folks! 

Anyway, to summarize briefly about these topics, the first point 
that I would like to make is that captive breeding and 
translocation, reintroduction, similar procedures, do work for some 
species of organisms, despite some of the pessimistic statements 
that we heard earlier by my colleague and friend. Dr. Simberloff. 

I know this from the work that the Peregrine Fund has done, not 
only with the peregrine falcon but also with about seven other en- 
dangered species of birds of prey that we have studied and released 
around the world. 

I also know it from information which I receive as Chairman of 
the lUCN Species Survival Commission's Specialist Group on Re- 
introduction. I have gotten information from around the world on 
more than 100 avian projects that are under way involving 
translocation of one sort or another. And some of those — not all of 
them — have been successful. 

Now, as far as the group that I am particularly interested in, the 
birds of prey, there are at least 20 species in which significant local 
or regional populations have now been reestablished by these pro- 
cedures. 

I will just give you two quick examples and talk about the per- 
egrine falcon, because that species has served more or less as the 
model for a lot of this work, and also mention another species that 
you may not have heard about, the Mauritius Kestrel out in the 
Indian Ocean, 

The peregrine falcon is an interesting species in a lot of ways. 
It has always been naturally rare, even in the best of days, but it 
has a wide distribution. In fact, it is the most widely naturally dis- 
tributed bird in the world. 

So why do we have to be worried about it? In the 1950's and the 
early 1960's, this bird, like a few others, the bald eagle and so on, 
encountered some peculiar problems as a result of the overuse of 
DDT and other pesticides, which resulted in reproductive failure 
and the loss of population. The species disappeared over large por- 
tions of its range in Europe and North America. 

Just, for example, in the eastern United States, from the Mis- 
sissippi River east to the Atlantic coast, where there used to be 
about 400 or 450 pairs — remember, we are talking about over a 
million square miles of area here, so that is a very thin popu- 
lation — those birds were entirely gone, disappeared completely by 
the late 1950's to early 1960's. 

Now, as a result of breeding this species in captivity at Cornell 
and a lot of other places, too, and releasing the progeny of those 
birds back into the wild in this area that I mentioned, the eastern 
area, we now have reestablished 180 pairs, approximately. That in- 
cludes southern Canada and the Atlantic coastal States. So we are 
quite a ways toward return to the level that this species once had 
in numbers there. 



70 

In the greater Yellowstone ecosystem, which was also totally 
wiped out, no peregrines left, we now have 60 pairs reintroduced 
there, and I could go on with similar cases. 

But the bottom line is that there are now about a thousand pairs 
of peregrine falcons again nesting in the United States south of 
Canada, about as many as there ever were. We think that this spe- 
cies is ready to be removed from the endangered species list, and 
we expect to see it delisted this year. 

Now, quickly, on the Mauritius Kestrel, because I see the yellow 
light is already on, when we started work on that species in 1973, 
1974, it was one of the most endangered birds in the world. It was 
reduced to fewer than 10 individuals. There were only two pairs 
that could be found in the field, and only one of those had a female 
that was still productive. So it was down to a single productive fe- 
male. 

By using the same techniques that we applied to the peregrine 
falcon, over the following 20 years or so we have built that popu- 
lation back up so that in the last breeding season there were 70 
pairs nesting in the wild and about 300 individuals. We expect that 
population now on its own to build up to a level of perhaps 200 or 
so pairs. 

Just quickly coming back to some conclusions about the role of 
captive breeding. I agree with Dr. Simberloff that it is not a pana- 
cea for all species, only for a few species. Many species cannot be 
bred in captivity, and of those that are bred, only a few can pos- 
sibly be successfully released because of difficulties in development 
of behavior or other problems that result from the captive situa- 
tion. 

We need suitable habitats to introduce species, so we should not 
think of breeding and translocation as substitutes for the preserva- 
tion of habitat and for ecosystem management and other more ho- 
listic actions that people have been talking about here today. 
Breeding and release should be considered methods of last resort, 
used only when it appears they will be helpful in a particular case. 

If I could just say two things about the Endangered Species Act 
as to how it has helped and how it has hindered us. The main way 
we have had difficulties with the act has been in the permitting 
process. It is very burdensome, and it is compounded by the fact 
that we have to comply with permitting procedures with several 
other Federal acts, the Migratory Bird Treaty Act and the new 
Wild Bird Conservation Act, and sometimes others. Sometimes 
there are conflicts over what is required among these acts. 

So we would like to see the Federal permitting system for re- 
search and conservation work simplified and streamlined; and we 
have submitted a memorandum to your committee about some 
things we think could be done through an amendment to the En- 
dangered Species Act to make this situation simpler, not only for 
the permittees but also for the Federal permitters, to make all of 
our lives a little easier. And I would request that you look at those 
recommendations. 

As far as how the ESA has helped, people have been emphasizing 
cooperation here today, and I agree with that. The provisions in the 
act that allow for cooperation among various parties, the Federal 
Government and the States and nongovernmental organizations 



71 

and even private individuals, I think are the great strength of the 
act. 

I would like to see section 6, for example, improved even more 
and with more funding going to the States in proportion to some 
of the other programs the Endangered Species Act supports, such 
as consultations and law enforcement. I would like to see language 
that makes it clear that nongovernmental entities are also coopera- 
tors. 

Thank you very much, 

Mr. POMBO. Thank you. 

[The statement of Mr. Cade may be found at end of hearing.] 

Mr. POMBO. Mr. Gordon. 

STATEMENT OF ROBERT GORDON, NATIONAL WILDERNESS 
INSTITUTE, WASHINGTON, D.C. 

Mr. Gordon. Mr. Chairman, thank you for this opportunity to 
provide NWI's views to the Endangered Species Task Force. 

The debate over the act's reauthorization is often presented in 
the simplified terms of those who are defending the law and those 
who are defending themselves against an out-of-control act. At 
NWI, we address a different issue: the fundamental question of 
whether the law has been good for wildlife and, if not, how should 
we go about making it better. 

Simply put, the act's principal goal is to recover species. While 
some species have benefited, particularly from efforts like Dr. 
Cade's, unfortunately, to date, not one species has been delisted as 
a result of the act. Although several species are officially termed 
recovered, in each case, data error or recovery from factors unre- 
lated to the act would be a more accurate explanation. 

As you can see from this chart, not a single species can legiti- 
mately be claimed as recovery of the act. More disconcerting is that 
there is little indication the act is generally improving species' 
statuses. The Service has stated, species listed longer appear to 
have a better chance of becoming stable or improving. This state- 
ment leads one to believe that the act, if not yet achieving recovery, 
is heading in that direction. 

However, several years after making this claim, the Service re- 
mains unable to substantiate it. In fact, the recently retired Deputy 
Director of the Service has stated that the word "appear" in this 
statement is a weasel word. 

The law's advocates highlight the number of species categorized 
as stable or improving, intending this to be interpreted as progress. 
This, however, is a faulty assumption for several reasons. 

First, the determinations of improving and stable are purely 
qualitative measurements. Second, categorizing may be based on 
no more than a biologist's opinion. Third, it is incorrect to assume 
that because some percentage of species is called stabled or improv- 
ing as concerns threats to the species at a particular moment that 
the act is generally benefiting species. 

This is like showing a still photograph of a car and arguing it 
is going fast. From the photo, we cannot determine that it is going 
fast. In fact, we cannot determine if it is moving at all or even its 
direction. If it were a safe assumption that species are declining 



72 

when listed, then simply stating what percentage of species are 
deemed stable might mean something, but that is not the case. 

The law does not require a species population trend be negative 
for listing. A species may be listed simply because of a threatened 
habitat modification or even the lack of existing regulatory mecha- 
nisms. And the current listing standard of best available data is 
bad. Because best is a comparative word. Data need not be reliable, 
adequate, accurate or even good. This standard leads to mistakes 
like the Mexican duck and many others, wasting scarce conserva- 
tion dollars. 

The Service considers the status of 27 percent of species as un- 
known, an increase of 7.6 percent from the previous report. This 
high percentage of unknowns, zero recoveries to date, the Service's 
inability to demonstrate statistical improvement, the law's perverse 
incentives, the history of data errors, the poor listing criteria and 
criteria standards, suggest that the program's implementation is 
hazy at best and casts doubt on any claim of general benefit to spe- 
cies. 

A review of ideas and statements and recovery plans furthers 
leads one to question the prospects for any future recoveries. 

The Florida scrub jay plan states: Because of the extreme useful- 
ness of the act in this case, it is not desirable to remove the scrub 
jay from under protection of the act. 

The Iowa Pleistocene snails plan states: With a return to glacial 
conditions, it will be resuscitated over a major part of the upper 
Midwest. 

The blunt-nosed leopard lizards plan states: A current target 
acreage figure of 30,000 acres has been established for the San Joa- 
quin Valley floor. Conflicting land users will be reduced or elimi- 
nated. 

The plan for three beach mice states: Encourages restrictive 
agreements in sales and rental contracts requiring house cats to be 
confined and monitor activities for privately owned lands through 
county planning boards, rezoning applications, et cetera. 

The act's poor record does not mean that we cannot conserve en- 
dangered wildlife. Compare the results of the act's approach with 
voluntary, incentive-based efforts. As a result of nesting boxes built 
by duck hunters and placed in swamps, there are now over three 
million wood ducks, once a severely depleted species. 

Because bluebird fanciers designed and placed tens of thousands 
of bluebird houses, bluebirds are on the rebound from a precipitous 
decline. 

And wild turkeys have increased to a population high from se- 
verely depleted numbers because of efforts of groups like the Na- 
tional Wild Turkey Federation. 

If the act had been adopted earlier in the century, wood ducks, 
bluebirds and wild turkeys would have been on the endangered 
species list. How could one then convince a landowner to give per- 
mission to put a nesting box on his property? How many land- 
owners could afford to let private groups release birds on their land 
if the presence of the species meant they could no longer use their 
property? 

The act does not recover species, and there is little evidence that 
more time, money or more aggressive application will change that. 



73 

The old way has cost billions of dollars and tremendous harm and 
destroyed trust between people and wildlife officials. We need to re- 
establish that trust with farmers, ranchers and other citizens to ef- 
fectively conserve wildlife. 

The old law has failed because it is founded, essentially, on regu- 
lation and punishment. There isn't even a section of the law called 
conservation or recovery. It is predominantly about bureaucracy, 
and its fruits are paperwork, court cases and fines, not recovered 
species. Conservation's future lies in establishing a new foundation 
based on the truism that if you want more of something, you re- 
ward people for it, not punish them. 

The debate that is unfolding here is between methods of con- 
servation. One way is shackled to the idea that a government solu- 
tion of national land use control will work. The other promotes a 
new way that can actually help species because it stops punishing 
people for providing habitat and encourages them to do so. It cre- 
ates an opportunity for government to reestablish trust and work 
with citizens. 

Thank you again for the opportunity to present my views, and 
I commend the Chairman and the task force Chairman for address- 
ing this issue, for providing so many opportunities for interested 
and affected Americans to participate and for your dedication to 
promote reforms that are both meaningful to wildlife and people. 

Mr. POMBO. Thank you. 

[The statement of Mr. Gordon may be found at end of hearing.] 

Mr. PoMBO. Dr. Brown. 

STATEMENT OF WILLIAM Y. BROWN, PRINCIPAL, RCG/HAGLER 
BAILLY, MEMBER, NATIONAL RESEARCH COUNCIL, COMMIT- 
TEE ON SCIENTIFIC ISSUES IN THE ENDANGERED SPECIES 
ACT 

Mr. Brown. Mr. Chairman, Madam Congresswoman, I am a 
member of the National Research Council Committee on Scientific 
Issues in the Endangered Species Act. Its report was issued yester- 
day, and I would like to spend my few minutes just talking about 
some of the report's highlights. I have a copy of the statement that 
the Chairman of the NRC Committee presented yesterday; and, if 
it is appropriate, I will put the statement into the record. 

Mr. POMBO. Yes. 

[The statement of Mr. Clegg may be found at end of hearing.] 

Mr. Brown. The committee was formed — as I think you heard 
this morning — at the request of one Senator and two Members of 
Congress. In the letter that they sent, that triggered the report, 
they asked six specific questions about the Act, and they asked the 
National Academy of Science and the National Research Council to 
form a group of individuals with scientific backgrounds to try to ad- 
dress the questions from a scientific perspective. 

That group was formed. The letter was sent in November 1991, 
and it took about a year for the funding to come through, so the 
study was about two-and-a-half years ago. 

The committee is made up of a diverse group of individuals. Ev- 
eryone has background in science, or economics in one case, and 
there is one law professor. Most have had a connection with endan- 



74 

gered species or endangered species policy over some time, al- 
though some are pretty pure academics. 

The committee members did not just come from academic institu- 
tions, but also industry and some policy groups like the Wildlife 
Management Institute. My own background at the time was with 
Waste Management, Inc., so my employment background was from 
industry. 

It is important, I think, to note that the committee worked hard 
to achieve a consensus. That took some time, but, in the end, the 
report does reflect a consensus. And all of the conclusions and rec- 
ommendations of the report are approved by every member of the 
committee. The most fundamental are to follow. 

Please bear in mind that this committee did its very best to act 
as a group of scientists. We recognize that there is a role for policy- 
makers and a role for economic and political considerations, and we 
did our very best to divorce ourselves from that. 

We were of the view, reflected in the report, that the Endangered 
Species Act is fundamentally sound from a scientific point of 
view — its assignment of values to species; its reference to 
ecosystems. 

We can talk about what "ecosystem" means in the Act, but the 
fact is that the ESA values not just the protection of the species 
but of the ecosystems in which they occur. Ecosystem protection is 
most fundamentally the framework within which the Act operates. 

In particular, the committee concluded that there is an undeni- 
able link between habitat conservation and species. There are some 
species that have been rendered endangered by chemicals or by 
taking, but clearly habitat is central and is a major cause of 
endangerment. 

The committee addressed the question of what are the right 
units of protection. As you know, the Endangered Species Act au- 
thorizes the listing of species or subspecies of animals and plants 
and distinct population segments of vertebrates. The committee 
concluded that the animals and plants which are conventionally 
classified by taxonomists in different fields as species — full species 
or subspecies — in general are valid units from the perspective of 
listing. The committee's concept is something called the evolution- 
ary unit, which is an assemblage of organisms that has a common 
evolutionary history and a unique evolutionary future. Our view is 
that species and subspecies conventionally defined fit this defini- 
tion. 

The real debate is on distinct population segments, and there is 
ample room for debate on many of them. But we think that it is 
valid to list distinct population segments if they are evolutionary 
units, and there are many like the burrowing owl in Florida which 
are valid units. There are some other populations that are not evo- 
lutionary units, like the bald eagle in the lower 48, which is not 
a separate evolutionary unit from the bald eagle as a whole. This 
does not mean you should not protect the bald eagle in the lower 
48 States, but it is not evolving as a separate unit from Alaska. 

We found no scientific bases for any differences in protection sta- 
tus between vertebrate animals and invertebrates and plants. 
Again, this doesn't mean that the Congress should not consider 
other factors, but there are no scientific lines that we could draw. 



75 

On the recovery process, I guess we got the closest to looking at 
the regulatory system. We do have a recommendation: too often the 
recovery planning process has been divorced from guidance on the 
regulatory requirements of section 7 and section 9 and section 10 
of the act, and the result really is not very effective from the point 
of view of protecting species. Nor is it a fair thing to do to the com- 
munity of individuals that is regulated by the act. 

I know that the agencies involved are trying to do a better job 
at integrating the scientific recovery planning effort with giving 
guidance on what those requirements are: to get the requirements 
out up front, and define what is OK to do or not OK. But they 
should do more if the yeas and nays are said up front; we could 
narrow the area where there is debate and limit back and forth 
with regulators which causes delay. 

The committee report expresses the view that the Endangered 
Species Act has played a positive role, especially in preventing spe- 
cies' extinctions in some cases. However, the report also states that 
the Act is not enough, and more should be done. The committee is 
not recommending an expansion of the Endangered Species Act or 
the adoption of additional legislation, but there is a need to do 
more, and it could take any number of forms. 

My own interest is in the partnership area that we have talked 
about. I think that there is a lot of environmental spirit in many 
of the larger companies that I have worked with that, without reg- 
ulatory mandate, will undertake voluntary programs for 
biodiversity conservation. 

And so, separate from this reauthorization discussion, things 
should be done to encourage these partnerships. The Fish and 
Wildlife Service has one program, for example, called Partners for 
Wildlife. It is very small and very effective, giving technical assist- 
ance and helping landowners do things on their properties at their 
invitation. Programs like it should be supported, and nurtured. 

These points are basically what we concluded. 

Mr. POMBO. Thank you. 

One of the things that was in your report was the idea of estab- 
lishing survival habitat, and it says, with no considerations of eco- 
nomics. Do you — I mean, I know you guys were scientists and com- 
ing at it from that point of view, but do you have any idea what 
the policy implications are of doing that? I mean, maybe I don't — 
I just got your report, so I haven't had the chance to read the whole 
thing yet, but what do you mean by that? 

Mr. Brown. I think that is a fair question to ask. Well, just to 
understand where it came from, we were asked to address critical 
habitat by one of the questions in the letter from Congress. There 
was a concern that in our committee critical habitat designations 
are a long, difficult process where, among other things, economic 
considerations come into force. We considered it important when a 
species is listed to put it on the map so people know where it is 
and what areas are most important to it. We thought that doing 
this would be to everyone's benefit that is affected by the act. So 
we developed that proposal. 

The idea is that survival habitat would be an area no larger than 
critical habitat and would generally be a much smaller subset de- 
fined as that. It would be the area that is critical for survival, not 



76 

recovery — to maintain the existing population or to give some as- 
surance that extinction won't occur within 25 to 50 years. 

It would be a much smaller area than critical habitat. There 
would be nothing from a regulatory perspective attached to sur- 
vival habitat that is different than what is attached to critical habi- 
tat — ^basically the requirement that is now in Section 7 prohibiting 
agencies from adverse modification or destruction. 

One other thing. Survival habitat designations would be in place 
only until critical habitat is designated and then they would be- 
come no longer effective. 

Mr. POMBO. One of the dangers in what you are advocating, and 
I won't dismiss it offhand because I have not had the chance to 
read the whole report, but one of the dangers in what you are advo- 
cating is that the vast majority of species that are on the list, they 
don't know where they live. They don't have critical habitat maps. 
They don't have that knowledge, and to go in with a survival habi- 
tat that ensures their life for 25 to 50 years assumes that they did 
good science to list the species to begin with, and I know you were 
here earlier. 

One of the problems we have is that with the recent listing of 
the fairy shrimp in California, they assumed by where they sur- 
veyed for the shrimp that it was endangered even though that 
wasn't where the majority of its habitat was. They were on the 
wrong side of the valley when they surveyed. 

So if we went in with the survival habitat and said, this area is 
survival habitat for the fairy shrimp. Fish and Wildlife would say, 
you can't do anything within that survival habitat, even though 
there is no critical habitat map that has been adopted, there is no 
recovery plan that has been adopted. 

They have no — they did not do good science to list it to begin 
with, but it is just another step in the bureaucratic regulatory proc- 
ess that now they have what they call a survival habitat and they 
get to put this out there even though they haven't done the work 
to establish where the species lives. They haven't done the work. 
And if you don't know where the species live, you can't say whether 
or not it is endangered. 

So I think that you need to — if you do adopt an idea, and I un- 
derstand why you did it, if you do adopt an idea of survival habitat, 
there also has to be better science to base the listing on to begin 
with than what we did. 

Mr. Brown. I appreciate your point, Mr. Chairman. If I remem- 
ber our recommendation accurately, I don't believe we are rec- 
ommending that survival habitat be designated for already listed 
species. 

Mr. POMBO. No. This would be for new species coming on and 
using the fairy shrimp as an example, which was listed September 
15th of 1994, and now we are a few months down the road and 
there is severe criticism of the science that was used, the lack of 
any type of peer review, the lack of using other biological data that 
was produced and available to them. You know, they didn't follow 
what everybody thinks of when they think of listing an endangered 
species. 

Mr. Brown. Well, I guess I would — what I would like you to do 
is to take the recommendation, what I think is the spirit in which 



77 

it was offered — in which it was suggested by the committee, not 
really — not advocated, and really with a concern that all future 
listings should convey with them some knowledge, good knowledge 
of the habitat most critical to them. 

We didn't audit past listings, but knowledge and habitat should 
be there, and it is important to give people guidance about where 
the habitat is. Survival habitat seemed to us one way you could do 
that, while keeping critical habitat with its economic impact consid- 
eration. 

Mr. POMBO. Can you also provide for the record who you talked 
to, who you 

Mr. Brown. Sure. 

Mr. POMBO [continuing], sought information from in coming up 
with these recommendations? 

Mr. Brown. I would be happy to do that and we have extensive 
written input from all sorts of folks. 

Mr. POMBO. I will read the report and I know I will have further 
questions for you. I wish that there was an opportunity to have 
read that before we had this, but I will have further questions for 
you on the report to try to clarify exactly what you did mean by 
certain parts of it after I have had the chance to finish reading the 
entire thing. I thank you. 

Mr. Gordon, in your prepared statement, you talk about plans 
that have an enormous amount of habitat requirements and one of 
those was the blunt-nosed leopard lizard, a current target figure. 
Acreage target figure of 30,000 acres has been established in the 
San Joaquin Valley floor with acquisition emphasis on optional 
habitats, containing high density blunt-nosed leopard lizard popu- 
lations in identified priority habitat areas, conflicting landowners 
will be reduced or eliminated in an effort to restore habitat to opti- 
mal conditions. And then it goes on to describe further property in 
adjacent foothill and plain areas. Where did you get this from? 

Mr. Gordon. The recovery plan approved by the Fish and Wild- 
life Service for the blunt-nosed lizard. 

Mr. POMBO. So this came right out of their recovery plan? 

Mr. Gordon. Yes, sir. Last year, we undertook a review of all the 
recovery plans that had been approved through a certain day. I 
think it covered some 306 recovery plans and I have attached to 
my statement an article concerning this study that was recently 
produced in the Franklin Journal of Technology. 

Mr. POMBO. This one? 

Mr. Gordon. Yes, sir. 

Mr. POMBO. I was reading this last night and I ran across that 
and it kind of made me — woke me up a little bit, let's say. You also 
talk about, in your prepared statement, that they want to depend 
upon other tools to control habitat other than the Endangered Spe- 
cies Act, and you list several examples of where they talk about 
using local zoning ordinances and Clean Water Act, different wild 
and scenic river examples. Under the current act, what authority 
does Fish and Wildlife have to do this? 

Mr. Gordon. I don't know the answer to that. Just to be quite 
blunt. They are encouraged, obviously, all agencies are — well, 
maybe I do. I think in — early in the act, under the purposes of 
statements, all Federal agencies and departments, I believe, are 



78 

supposed to use their authorities for furtherance of the purposes of 
the act. Therefore, any other authorities they have that might be 
able to — that might allow them to try and make use of local zoning 
ordinances 

Mr. POMBO. But there is a difference between Federal Clean 
Water Act and the Wild Scenic Rivers Act and local zoning ordi- 
nances. 

Mr. Gordon. Yes, there is a clear difference. I don't know the an- 
swer to that, but I would assume that that is the section of the law 
that a regulator would quote if you asked him, but I may be wrong. 
I would be very happy to research the issue and try to get back 
to you on that. 

Mr. POMBO. I wish Mr. Frampton was still here. I would like to 
ask him that question under that. Another thing in here that you 
had was with the Iowa Pleistocene snail. 

Mr. Gk)RDON. Yes, sir. 

Mr. POMBO. I guess that is how you pronounce it, with a return 
to glacial conditions, it will be resuscitated over the major part of 
the upper Midwest provided areas are preserved and maintain. 
What do they mean by that? 

Mr. Gordon. I guess it is kind of a long-term program. I don't 
know if it is very expensive on an annual basis, but it might 
compound. As I recollect that recovery plan, the snail was found on 
rocky outcrops that had algiftc talus- specific — well, it had plant life 
that was similar to more northern latitudes, and these were the 
last — the remaining areas from when the glacial age had last been 
here and that is when the snail prospered. 

And the recovery plan, the intent of the recovery plan is to make 
sure those areas basically stay as they are and provide continued 
habitat for that snail, and then when we enter another ice age, 
which is the climate which is favorable to the snail, the snail would 
then prosper. 

Mr. POMBO. And that is legitimately in their recovery plan? 

Mr. Gordon. Well, it is in the recovery plan, but a lot of the 
statements that you find in the recovery plans almost seem laugh- 
able. I think there was a process whereby very early on in a lot 
of the recovery plans, there was serious intent by the authors and 
they really believed that the plans were going to be carried out and 
the actions were going to be implemented and they would see the 
reaching of measurable goals that eventually led to the recovery of 
the species. 

As we went further on in later dates in the recovery plans, that 
becomes questionable, whether the authors believed anybody was 
really going to actually ever be implementing this plan. They 
seemed to get — they started to get a bit silly. And I think it is un- 
fortunate that that occurred, primarily because the law has become 
more of a regulatory mechanism rather than a tool which encour- 
ages the type of proactive management actions that Dr. Cade and 
others take. 

Mr. POMBO. Dr. Cade, you bring up propagation and the fact that 
it is useful in certain circumstances. 

Mr. Cade. Yes. 

Mr. POMBO. Under the current implementation of the act, is it 
encouraged that you experiment with captive breeding programs or 



79 

is — I mean, everything that I have heard is that they don't want 
you to use it and they do not want to consider that as a viable 
means of leading toward the recovery of species. 

Mr. Cade. Well, I think, yes, I would agree that the current atti- 
tude in the Fish and Wildlife Service and a lot of other of the land- 
holding government agencies is very much toward the habitat pres- 
ervation, ecosystem management approach to things and to deem- 
phasize work on individual species, including captive propagation 
and reintroduction. 

On the other hand, I have to say that the Fish and Wildlife Serv- 
ice Endangered Species Program has continued to support various 
captive breeding programs like ours and the condor, whooping 
crane, and a number of others, the black-footed ferret and so on, 
so they are still very much into the business of supporting this 
work, although in their public statements, they downplay its im- 
portance. 

Mr. POMBO. Now, the captive breeding programs that you have 
described are with species which are on the verge of extinction. 

Mr. Cade. Most of them are, yes, or were at one time, what we 
would call critically endangered. That is correct. Down to a few in- 
dividuals. 

Mr. PoMBO. That is a 25-year process. 

Mr. Cade. They are species that are either reduced down to a 
few individuals in a very restricted range, such as the Mauritius 
Kestrel that I talked about or the California condor would be an- 
other example. Also the Hawaiian crow, or they are species with 
broader distributions which have lost huge chunks of their natural 
range and where it is unlikely that individuals from the outlying 
populations will reinvade and repopulate those vacant areas. 

Those are the sorts of situations where I think these intensive, 
hands-on manipulations can be beneficial to species recovery. 

Mr. PoMBO. I saw — or I read a statement about a peregrine fal- 
con nesting in the top of a building in San Francisco. 

Mr. Cade. Yes, that is correct. It is not alone. There are over 80 
pairs, probably close to 100 pairs now nesting in cities. New York 
City has 12 pairs. Los Angeles probably has that many. They have 
taken over urban environments in a great way since we started re- 
leasing them. 

Mr. PoMBO. So the possibility exists for them to, I guess, adapt 
to an urban area like that? 

Mr. Cade. They can adapt to urban areas, and there were a few 
pairs in cities before the DDT problem came along. New York had 
a pair, Philadelphia had a pair from time to time, and there was 
a very famous pair that nested for 14 years on a building in Mon- 
treal; but they were exceptional. 

But there was a propensity or a tendency for peregrines to do 
this sort of thing, and if DDT hadn't come along and wiped them 
out in the East, it is likely that this habit of going to cities would 
have developed further. 

But since we put these birds back that have had — how should I 
put it — they have had some experience with the trappings of 
human occupancy and so on, so that there is no way to avoid their 
not being somewhat familiar with buildings and other structures 
associated with human beings. This experience, I think but I can't 



80 

prove it, has somewhat preconditioned them to accept man-made 
structures as nest sites. They nest on buildings. They nest on 
bridges. They nest on towers. 

Mr. PoMBO. If we were to operate more proactively with species, 
species management, and instead of waiting until we were down to 
the last 10 pairs and the last breeding female of a particular spe- 
cies and that we had a species that was in decline and we began 
an active breeding program, captive breeding program, and — to 
build up the numbers and continued, I know you have learned a 
lot in your time of doing this, but continued to go out back into the 
wild and bring in natural gene pools so that you don't have some 
of the problems that have developed in some of the other captive 
breeding programs, could we not expand the use of captive breed- 
ing programs if we did that? 

Mr. Cade. This is pretty much what we did with the peregrine 
actually. We brought in stock from all around North America for 
breeding, and we used the progeny, what some people call hybrids 
or mixed stock, to repopulate the eastern United States. And, yes, 
if it is clear from population censuses that there is a species that 
is declining at an unusually rapid rate, then that might signal the 
need for some hands-on work. 

Mr. PoMBO. Thank you. Dr. Wood, I understand that in your ca- 
pacity that you have had to deal with conflicts in management of 
different species, and particularly with the woodpecker and a but- 
terfly that existed on your property. Could you elaborate on that 
a little bit? 

Mr. Wood. Well, those and the gopher tortoise. I think the inter- 
esting thing about all three species is that their conservation is not 
difficult to integrate into forest management practices. That doesn't 
say that there do not have to be some alterations, i.e., modifica- 
tions in how things are done, but it certainly does not require 
major modifications, even on an industrial forest. 

What we find with the species that I have worked with on pri- 
vate lands is the necessity of having large parcels of land. As the 
land parcel gets smaller, the difficulty of carrying out meaningful 
conservation without severe economic impact becomes greater and 
greater. Most corporate ownerships are in substantially large par- 
cels. 

In the case of the red-cockaded woodpecker in the South, Geor- 
gia-Pacific's Crosset forest in Southeast Arkansas has been an in- 
dustrial forest for close to 100 years. It has been managed for noth- 
ing but timber over that time, and with even aged management 
since 1963. 

And yet there are only four national forests of the 12 that have 
been targeted for recovery populations, that have more woodpeck- 
ers than does the Crosset. We made just a few minor adjustments 
in how that timber was being managed where the woodpecker was 
present. Today it is supporting about 95 active colonies, and the 
economic sacrifice is negligible. 

It costs money — actually, most of the money is in personnel time 
used to document that the plan is working — we have a memoran- 
dum of agreement with the U.S. Fish and Wildlife Service, that 
says that while the Georgia Pacific plan is not the same as the gov- 
ernment's plan for the RCW on private lands, it is equivalent in 



81 

its conservation effect and that there will be no net loss in the de- 
mographically isolated portion of the population that can be attrib- 
utable to timber management. 

I feel certain that we will be able to live up to that agreement. 
In the case of the Kamer blue butterfly, I am optimistic it is going 
to be a very substantial success story. But, again, it requires own- 
ership of land in parcels large enough for flexibility. For instance, 
in the case of the butterfly, if you are on a 60-year rotation in 
which most red pine plantations in Wisconsin are, normally about 
the first 15 years of a red pine plantation will be good butterfly 
habitat. So about 25 percent of the landscape that is in a 60-year 
rotation is in butterfly habitat at all times. 

Now that will work OK as a conservation measure. You can as- 
sure lots of butterfly habitat if you held a large parcel of land. But 
if you only have 60 acres or 20 acres or something or other, some 
small acreage, this strategy will not work because you cannot man- 
age that timber, you cannot sell timber in small enough parcels for 
that to work. 

So what we are doing there is coming together with the other 
non-Federal entities — particularly the State, which has land and 
State holdings that are in large parcels; and the counties, which 
own about 15 percent of the Wisconsin forests, and bringing in 
some of the corporate lands, such as those of Georgia Pacific, which 
will have about 60,000 acres affected by this plan. 

And we are saying that the fundamental purpose of the act is to 
prevent extinction, i.e., to ensure the future of a species. We will 
ensure the future of this species in central Wisconsin on these 
lands, but we want the obligations taken off of the rest of the small 
private landowners who cannot deal with this. Their land is in par- 
cels that are too small. 

Mr. PoMBO. The original habitat of the Kamer blue butterfly ex- 
tended from Wisconsin to New York. 

Mr. Wood. Into southern New England even, yes. 

That is one of the problems in the act. The Kamer blue butterfly 
is highly abundant in central Wisconsin. Wisconsin is a State that 
is very highly environmentally sensitive. Counting their species of 
special concem, they have about 212 State-listed species. And, yet, 
they have trouble justifying to themselves the need to list the but- 
terfly. They recommended to the Federal Gk)vemment not to list as 
endangered but to list as threatened. 

Michigan, I understand — and I am not doing any work in Michi- 
gan. It is just my understanding that there are substantial popu- 
lations in Michigan. 

Now also what I understand is that, in fact, the butterfly may 
be endangered in southern New England, New York, northern mid- 
Atlantic States, even into Iowa and Illinois. But that is not the case 
in Wisconsin and Michigan. 

Mr. POMBO. Let me ask you about that. How do you — how do you 
deal with that, where you say it is not endangered in Wisconsin, 
but it may be in New York? Is it a different butterfly? 

Mr. Wood. No, it is just that there is a difference in landscape. 
Where there is habitat and where there are butterflies, there will 
be butterflies. They have lost that habitat. 



82 

The problem that has made it difficult for us to work with is the 
criticism: "Why are you going to all this trouble if there are so 
many butterflies?" Well, because, in the Act, only vertebrate fish 
and wildlife can be listed by distinct population. For invertebrates 
or plants, you must list rangewide under one designation. 

So because it is, if the information that the Fish and Wildlife 
Service has is correct, that it is endangered in a significant portion 
of its range, it is then listed rangewide, not just in that portion of 
the range. 

Mr. POMBO. So in order to handle all the species that are on your 
property, it involves extensive management of the property. Where 
you cut land, cut trees, replant, that becomes habitat as you are 
moving on to the next level of management. 

What you are describing is what I think — what a number of peo- 
ple have advocated in the Pacific Northwest on the spotted owl, is 
that the answer is not to lock down the forests but to manage the 
forests so that you have continuing habitat. And the current ap- 
proach does not allow us to do that. 

Mr. Wood. That is correct. For the species that I am familiar 
with, in order to integrate them into economic land use, or what 
I refer to as the working landscape, you have to look at a dynamic 
landscape and understood that where habitat is now, it won't be 
sometime in the future. But these species will change — will move 
with the availability of habitat. That is particularly true with the 
butterfly. We are working on that d3mamic. That is a part of the 
science. And it has certainly been true throughout the ages. 

For instance, considerable work has shown that changes in the 
southern forests have occurred sporadically due to hurricanes of a 
catastrophic proportion that have wiped out woodpecker habitat. 
We saw this with Hurricane Hugo and the Francis Marion Forest 
in South Carolina in 1989, and that was not an isolated event. And 
yet there have been lots of woodpeckers on that dynamic landscape 
over time. 

That has been pretty well true, I think, of most landscapes. They 
are dynamic. 

Mr. PoMBO. Well, I appreciate a great deal the testimony of this 
panel in answering the questions. I know that there is going to be 
further questions that other Members will have. Unfortunately, 
when we recessed today from the House, a lot of people had planes 
they caught to go back home. So I know that there are further 
questions, and I appreciate a great deal your patience and perse- 
verance in sticking with us for the final panel and thank you very 
much for being here. 

With that, the hearing is adjourned. 

[Whereupon, at 4:58 p.m., the subcommittee was adjourned; and 
the following was submitted for the record:] 



TESTIMONY OF ASSISTANT SECRETARY GEORGE T. FRAMPTON, JR. BEFORE THE 
ENDANGERED SPECIES TASK FORCE OF THE HOUSE RESOURCES COMMITTEE 
ON THE ENDANGERED SPECIES ACT. 

May 25, 1995 



I would like to thank the members of the Task Force and the 
Resources Committee for the opportunity to discuss the Endangered 
Species Act (ESA) , one of the most important conservation laws in 
the history of this nation, and probably the world. Despite the 
importance of this law, whose stated purposes are to conserve the 
ecosystems on which endangered and threatened species depend and 
to provide a program for their conservation, this subject seems 
to be generating much more heat than light in the past several 
months. Recent media coverage has focused almost entirely either 
on the Act's vaunted success stories (such as bald eagles, grey 
whale, and whooping cranes) or 'on reported horror stories (e.g. 
surrounding the California fairy shrimp and Stephens kangaroo 
rat) . While some of these stories aiffe valid, others are clearly 
exaggerated or false. The point is that neither success nor 
horror stories tell the real story. 

What has actually been happening over the past two years, much 
less publicized, is a quiet revolution in the implementation of 
the Act. This is a revolution brought about by this 
Administration in an attempt to do something that had not been 
accomplished in the past 12 years — to make the Act work better 
for both species and the public. Our key objectives are based 
on a common sense approach to the Act and a concerted effort to 



84 



solve legitimate problems while preserving the core goal of 
protecting our nation's priceless biological heritage. These 
objectives include: relaxing burdens for small landowners; 
encouraging large landowners to enter into voluntary agreements 
to manage their land to protect species, as a substitute for 
regulation; increasing certainty and predictability for private 
landowners and local governments; expanding the role of states; 
reducing socio-economic effects of listing and recovery; and 
making sure good science and the most accurate data available are 
being used in all ESA decision making. 

As successful as our efforts to date have been, more could be 
accomplished through changes Congress could make to the existing 
statute that would make it possible to achieve all of the 
Administration's 10 point plan announced in March of this year. 
These changes would result in a major reform of the way the ESA 
is administered. Congress could enact changes that would: 

— provide greater flexibility in the conservation of 
threatened species as originally intended by the Act; 

— provide certainty for landowners who develop habitat 
conservation plans or improve habitat for endangered species on 
their lands that their actions will not be subject to further 
restrictions under the ESA; 

— exempt residential homeowners and most small landowners 
whose activities affect less than 5 acres from the incidental 
take prohibitions of the Act; and 



85 



3 

-- give the states a much greater role and enhanced 
flexibility in the Act's implementation. 

In addition, the land management agencies are working together to 
formulate proposals to further reduce delays and uncertainties 
associated with the consultation process under the Act. 

These changes would be significant and go to the heart of 
legitimate problems associated with the Act. But just as 
important, they would be consistent with our fundamental 
principles for any ESA reauthorization we will support. These 
include: 

1) The reauthorization must be consistent with the overall 
purposes of the ESA which are widely supported by the American 
people. That support remains strong despite recent controversy 
as evidenced in a recent Lou Harris poll in the Northwest, which 
found that citizens support reauthorization of the ESA by over a 
2 to 1 margin, with 71% of those polled responding that the ESA 
has been effective in protecting plants and animals from 
extinction. The reauthorization, therefore, must not undermine 
the basic, requirement that endangered and threatened species be 
conserved — with the goal being to recover species and remove 
them from the list. 

2) It must make the Act more workable, efficient and less 
costly to implement for the government and property owners -- not 
more bureaucratic, costly and unworkable. 



4 

3) Finally, the reauthorization must reduce administrative, 
economic and regulatory burden on small landowners while 
providing greater incentives to conserve species. 

Our basic message, and the point behind the 10 point plan is that 
much has been done and still can be done under existing 
authority, using flexibility in the law and creativity seldom 
exploited in prior Administrations. Additional flexibility can be 
gained through a moderate, sensible, centrist program of 
amendment in the reauthorization process - - without throwing out 
the Act. 

I would now like to highlight some of the areas of the law we 
have been working to improve, and how our 10 point plan could 
greatly reduce current problems associated with the ESA. 

Relief for Small Landowners 

Early this year the U.S. Fish and Wildlife Service (USFWS) 
proposed a "special rule" under section 4 (d) of the Endangered 
Species Act to release about 80% of all the private forest land 
in Washington State (and substantial amounts in California) from 
virtually all logging restrictions that would otherwise apply on 
account of the northern spotted owl. This private landowner 
"dividend" was possible because the President's Northwest Forest 
Plan places the burden for conservation primarily on federal 
forest land to meet most of the conservation needs of the owl and 



87 



5 
other old-growth dependent forest species. 

The proposed special rule would, for the first time, also provide 
a "small landowner exemption" effective across both states. 
Owners of 80 acres of forest land and/or less located anywhere in 
Washington or California (even in the non-released areas) would 
be exempt from the logging restrictions. 

Secretary Babbitt will soon issue a proposed rule to e.xempt on a 
generic basis most current landowners who use their property as a 
residence, want to develop less than five acres of land, or who 
undertake development activities that have a minimal impact on 
the species overall. The exemption would pertain to virtually all 
"threatened" species, but would not apply where cumulative 
impacts to habitat from many adjacent small landowners might be 
severe. 

Our 10 point proposal asks Congress to provide the Fish and 
Wildlife with the same kind of flexibility to extend such an 
exemption for endangered species , which is not possible under 
existing law. 



Voluntary Agreements With Large Landowners 

In the 1982 amendments to the Act, Congress reconciled conflicts 



88 



6 

between private development and endangered species by allowing 
the development of voluntary "Habitat Conservation Plans 
(HCP's)." An HCP, when accepted by the USFWS, supplants the 
regulatory prohibition of the Act that private landowners cannot 
"take" threatened or endangered species on their property. The 
plans identify management techniques to protect listed species 
and/or set-asides of "reserve" areas in which habitat is 
protected; in exchange, permission for development of the rest of 
the property is granted. 

From 1982 to 1992, fourteen HCP's were completed. Since then, we 
have completed more than sixty additional HCP's, and more than 
150 additional HCP's are currently being negotiated nationwide. 

As a result of the new "no surprises" policy for HCP's announced 
by Secretary Babbitt late last summer, landowners with approved 
plans will be exempted from any additional requirements for 
species covered by the plans (both listed and not yet listed) for 
the life of the plan - - in some cases as long as fifty years. 
Thus landowners receive a significant degree of certainty and 
protection against future regulation. These multi-species HCP's 
are advantageous to both parties, and may help keep additional 
species off the endangered species . list. 

In the Southeast United States, USFWS has signed cooperative 
management agreements with three major timber companies to manage 



their lands to protect red cockaded woodpeckers: Champion 
International (Texas), Georgia-Pacific (Arkansas), and Hancock 
Timber (Virginia) . Four more such agreements, as well as ten 
HCP's, are currently under negotiation, including several that 
will cover many small landowners. 

For the Sandhills region of North Carolina, the USFWS recently 
developed a "safe harbor" HCP to provide incentives for private 
landowners to preserve and enhance red-cockaded woodpecker 
habitat. The agreement promises that success in attracting more 
woodpeckers to their property will not limit future development 
even if the woodpeckers are later compromised. A similar process 
has been proposed for the Pacific Northwest to encourage 
timberland owners with emerging owl habitat not to "panic cut" 
their lands before owls may be found there - - guaranteeing 
future logging of these lands will not be blocked by owls 
attracted to the improving habitat in the meantime. 

In the Pacific Northwest, to complement the President's Forest 
Plan, a team of biologists has been established in the USFWS 's 
Olympia, Washington, office to negotiate HCP's with large 
landowners. Agreements have been concluded with Weyerhaeuser for 
its holdings in Oregon, with Simpson Timber, and with Murray- 
Pacific Corp. More than a dozen additional HCP's are currently 
under development including prospective agreements with the 
States of Oregon and Washington, the Seattle Municipal Water 



90 



8 
District, and private industrial timberland owners. 

Most of these will be "multi-species" HCP's, designed to protect 
dispersal habitat for owls, riparian areas necessary for spawning 
salmon (both runs that are listed and runs that may be listed in 
the future), and other plants and animals. The riparian 
protection being incorporated in these plans are "state of the 
art" for private industry and are intended to meet both federal 
and state regulatory requirements well into the future. 

HCP's or cooperative agreements have also been signed or 
tentatively approved in the past year with states (e.g., Utah, to 
protect the Virgin River spinedace) , and counties. Examples of 
HCP's include Clark County, Nevada (Las Vegas), and Washington 
County, Utah (St. George), to protect key populations of desert 
tortoises; Riverside County, California, for the Stephens 
kangaroo rat; and Bakersfield County, California (multi-species) . 

In February the Plum Creek Timber Co. signed an innovative 
agreement with the USFWS, F.orest Service, and State of Montana to 
manage nearly 300,000 acres of private, state, and federal lands 
in the Swan Valley of Montana for grizzly bear protection. Plum 
Creek is the largest private landowner in Montana. 

In addition, the Congress could provide additional certainty to 
landowners who develop approved habitat conservation plans that 



91 



9 

protect non-listed species as well as listed species. Landowners 
who have satisfactorily demonstrated that they will protect 
candidate species or the significant habitat types within the 
area covered by a habitat conservation plan should be assured 
that their land use activities will not be disrupted if the 
candidate species or additional specific species not covered by 
the plan but dependent upon the same protected habitat type are 
subsequently listed under the ESA. 

Greater Involvement Of States and Local Government 
A major focus of criticism and frustration with the ESA has been 
the lack of adequate consultation, involvement and flexibility 
for the states in the implementation of the ESA. A critical 
component in our 10 point plan deals with this issue and was 
developed in concert with the Western Governors Association, 
National Governors Association, International Association of Fish 
and Wildlife Agencies (representing state fish and wildlife 
departments), and many others. 

The leading model for Habitat Conservation Planning spearheaded 
by state «Bd local government is the Natural Communities 
Conservation Planning (NCCP) process now underway in several 
Southern California counties. In a special rule under the 
Endangered Species Act first proposed in the Spring of 1993, the 
USFWS delegated to the State and counties in Southern California 
the opportunity to use existing planning processes to protect 



92 



10 

habitat for_ the California gnatcatcher, as a substitute for 
federal regulation. 

This devolution of authority has spurred Orange and San Diego 
counties, working with local municipalities, developers, and 
environmentalists, to develop several county-wide multi-species 
plans that would protect habitat for groups of species including 
many that are not now on the federal list. If approved, these 
plans will in effect plan for the open space, riparian, 
recreation, and habitat needs of these counties well into the 
21st century - - and suspend Endangered Species Act regulation 
for almost all species that could conceivably be listed in the 
coming decades. 

Federal as well as state, local, and private funds have gone into 
the planning effort, and the federal government will eventually 
contribute toward land acquisition necessary for any preserves, 
as will developers and state and local governments. 

Final plans are expected to be proposed before the end of 1995. 
In the mejuatime, interim guidelines permit subdivision and 
development of up to 5% of key habitat for listed species if 
targeted in less sensitive areas. This allows a "safety valve" 
rather than the complete halt in development that would have 
occurred if strict regulatory provisions of the Act had been 
applied. 



The Adir.ir.istration' s "ten point plan" of March 1995 identifies a 
series of legislative changes that could be adopted to guarantee 
broader state involvement in administration of the Endangered 
Species Act, and make delegation to state and local governments 
like that achieved in Southern California easier to structure in 
future cases. 

We suggest, for example, that States all be given a formal 
opportunity to review the scientific basis for future listing 
proposals, and that States be allowed to assume responsibility 
for development and implementation of recovery plans and for 
issuance of habitat conservation planning permits. Recovery plans 
should also be developed jointly between the federal and state 
agencies affected. 

We also suggest that where a State, _ in concert with other land 
stewards, develops its own conservation plan that would achieve 
the objectives of a recovery plan, the USFWS be authorized to 
suspend the effects of the species' listing (or several species, 
if the state plan is multi-species) in that State, letting the 
State ii^>le«ent its plan through state regulation and other 
means. USFWS would monitor that plan and review its effectiveness 
periodically. 

Ensuring The Use of The Best Science 

Another concern expressed by critics of the Act is that there is 



92-551 - 95 



94 



insuf f icier.i: outside review of listing decisions made by USFWS. 
We have adopted a policy acquiring three independent scientific 
peer reviews of all listings, and suggest that this requirement 
be written into the law. In addition, we support requiring that 
special consideration be given to State scientific knowledge and 
information. We propose that petitions be sent to each affected 
State fish and wildlife agency and that the Secretary be required 
to accept a State's recommendation against proposing a species 
for listing or delisting unless the Secretary finds, after 
independent scientific peer review, that listing is required 
under the ESA. 

Better Cooperation Among Federal Agencies 
Several of the apparent "train wrecks" attributed to the 
Endangered Species Act in the past resulted primarily from the 
failure of federal agencies to (1) obey their own statutory 
mandates, and (2) work together toward a common goal. Simply 
getting federal agencies working together has produced a Forest 
Plan for the Pacific Northwest that will provide a sustainable 
long-run timber harvest while protecting the old-growth forest 
ecosystem, owls, salmon habitat, and more than 1400 species 
dependent on this biologically-rich and threatened ecosystem. 

Our work in the San Francisco Bay/Delta contrasts with the 
conflict and delay that can result from the failure of Federal 
agencies to cooperate and listen to communities. Federal 



95 



13 
agencies jointly produced a plan for water allocations in the San 
Francisco Bay/Delta that would comply with the Endangered Species 
Act and Clean Water Act this cooperation produced an agreement m 
late 1994 that was joined in by the State of California, urban 
water users, agricultural interests and environmentalists - - 
achieving landmark consensus that has eluded policy-makers on 
these issues for almost 15 years. 

The Administration is considering other possible actions that 
would eliminate redundant review of federal plans and actions on 
federally-managed land - - allowing a single "screening" of plans 
or guidelines to protect species that, once adopted, would guide 
federal land managers without requiring duplicative reviews of 
every timber sale, recreation development, or watershed 
restoration project. 

Taking Account of Socio-Economic Factors and Trade-Of fs 

The Administration continues to support basing the listing of 

species solely on science, not politics. But the changes detailed 

above are intended to provide much greater flexibility, and 

therefore acre opportunities for consideration of costs and of 

socio-economic impacts, in how we go about recovering listed 

species. 

The use of Habitat Conservation Plans, and the greater 
involvement of state and local governments, will necessarily 



96 



14 
involve Xicre balancing of protection with economic costs. In 
addition, by policy the Administration has now directed that 
species recovery plans explicitly minimize any social and 
economic impacts of recovery. The Administration supports 
including such a requirement in the law. 

Ultimately, the changes that have already been adopted in the 
Administration's strategy recognize that the central goal of the 
Act is protection of habitat for endangered species ; that the 
most valuable habitat usually supports a rich mi.xture of species; 
and that the efforts to protect such habitat inevitably will 
involve weighing costs and benefits. 

Our approach to the Endangered Species Act is intended to 
recognize these trade-offs and balance decisions, taking the 
long-term, not the short-term, view. If good science and wise 
management of our natural resources guide our actions, we will 
benefit not only threatened and endangered species, but the human 
species as well. 



97 



A FAIR, COOPERATIVE AND SCIENTinCALLY SOUND APTROACH TO IMPROVING 
THE ENDANGERED SPECIES ACT 



TEN PRINCIPLES FOR FEDERAL ENDANGERED SPECIES ACT POLICY 

Ten principles guide the Administration's effort for reforming and implementing the Endangered 
Species Act: 

1. Base ESA deckions on sound and objective science. 

Federal Endangered Species Act policy must be baaed objectively on the best scientific 
information available. 

2. Minimw «if ial and economic imnacts. 

The ESA must be carried out in a manner that avoids unnecessary social and economic 
impacts upon private property and the r^ulated public, and minimizes those impacts that 
cannot be avoided, while providing effective protection and recovery of endangered and 
threatened species. 

3. Provide rniidc. resnonsive answers and certainty to tondownere. 

The ESA must be carried out in an efficient, responsive and predictable manner to avoid 
unnecessary social and economic impacts and to reduce delay and uncertainty for Tribal, 
State and local governments, the private sector and individual citizens. 

4. Treat landowners fairiv and with consideration. 

The ESA must be administered in a manner diat assures £air and considerate treatment 
for those whose use of property is affiected by its programs. 

5. Create incentives for landowners to conserve suedes. 

Cooperation with landowners in protecting and recovering species should be encouraged 
through use of incentives. 

6. Make effective «^ of ItmH.^ nohlic and nrivate resources bv focusing on groups of 
spedes dependent on the ame habitat. 

To make efifiBCtive use of limited resources, priority should be given to multi-^)ecies 
listings, recovery actions and conservation planning. 

7. Prevent SPedeff fnmi bffftmK «^Hanfi.i*H nr threatened. 

In carrying out its laws and regulations, the Federal Government should seek to prevent 
species from df<^iining to the point at which they must be protected under the ESA. 



PROTECTING AMERICA'S UVING HERITAGE: 



8. Promptly recover and de-list threatened and endangered suedes. 

The ESA's goal of bringing species back to the point at which they no longer lequiie the 
Act's protection should be achieved as expeditiously as practicable. 

9. Promote efTiciencv and consistency. 

The ESA should be administered efficiently and consistently within and between the 
Dqaitments of Commerce and the Interior. 

10. Provide state, tribal and local goy <fnniMit< with opportunities to plav a greater role 
in mrrving out the ESA. 

Building new partnerships and strengthening existing ones with state, tribal, and local 
governments is essential to each of the nine previous principles and to the conservation 
of species under the ESA in a £ur, predictable, efficient and effective manner. 



99 



FAIR. COOPERATIVE AND SOENTinCALLY SOUND APPROACH TO IMPROVING 
THE EfWANGERED SPECIES ACT 



A PACKAGE OF REFORMS TO IMPROVE THE ENDANGERED SPECIES ACT 

The Clinton Administration is announcing a package of refonns and proposed rcfonns that will 
have an immediate and positive effect on how the ESA is implemented throughout the Nation. 
This package builds on the ten principles set forth above. It describes administrative actions that 
have been taken or will be taken in the near future by the U.S. Fish and Wildlife Service (FWS) 
and the National Marine Fisheries Service (NMFS). And the package identifies ways in which 
implementation of the ESA could be improved through legislative action by the Congress. 

1. Base ESA Dedsioas on Sound and Objective Science. 

Issue DEFiNmoN : Concerns exist that decisions made under the ESA have not always 
been objective or based on the best available scientific information. 

Administration Position : Federal Endangered Species Act policy must be based 
objectively on the best scientific information available. Therefore the Administration has 
initiated the following reforms: 

*■ Peer review and information standards. To ensure that Endangered Species Act policy 
is based on the best scientific information available, the NMFS and the FWS have issued 
a joint policy directive requiring independent scientific peer review of all proposals to 
list species and all draft plans to recover species within the timefiames required by the 
ESA. A separate directive establishes more rigorous standards for the kinds of scientific 
information used in making ESA decisions. 

* Listing petition standards. The NMFS and the FWS have published draft guidelines 
for public review and comment that would set tougher, uniform standards for the 
scientific determination that there is 'substantial information' to propose a species for 
listing and would place more burden on the petitioner to show that the action may be 
warranted. 

2. Minimize Social and Econnnic Impacts. 

Issue DEFwrnoN : The ESA has been criticized for not giving greater consideration to 
the social and economic consequences of listing species under the Act 

Administration Position : The ESA must be carried out in a manner diat avoids 
unnecessary social and economic impacts upon private property and the r^ulated public, 
and minimizes those impacts that cannot be avoided, while providing effective protection 
and recovery of endangered and threatened species. Therefore, the Administration has 
initiated or supports the following reforms: 



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PROTECTING AMERICA'S LIVING HERITAGE: 



► Recovery plan development and implementation. The FWS and the NMFS have issued 
a policy directive on recovery planning that will require that any social or economic 
impacts resulting from implementation of recovery plans be minimized. To help ensure 
that this goal is achieved, this directive requires the NMFS and the FWS to scientifically 
identify the recovery needs of a species and then involve representatives of affected 
groups and provide stakeholders with an opportunity to participate in developing and 
implementing ^)proaches to achieve that recovery. It also will require that diverse areas 
of expertise be rq)rescnted on recovery 



>■ Greater JlexibQity. Rexible and creative approaches are necessary to prevent 
threatened species from becoming endangered and to provide the impetus to recover 
them. The CONGRESS should restore the distinction between a threatened species and 
an endangered species, which was originally intended, by providing the Secretary with 
flexibility to use, in consultation with the States, a wide range of administrative or 
regulatory incentives, prohibitions and protections for threatened species. 

*^ Landowner provisions. The policies outlined below to give landowners quick answers 
and certainty and to treat landowners fairly will minimize social and economic impacts 
to the private sector. 



Provide Quick, Responsive Answers and Certainty to Landowners. 

Issue DEFiNmoN : Concerns have been expressed by landowners and others that delay 
and uncertainty in ESA decisions unnecessarily frustrate development and land use. 

Administration Position : The ESA must be carried out in an efficient, responsive and 
predictable manner to avoid unnecessary social and economic impacts and to reduce delay 
and uncertainty for Tribal, State and local governments, the private sector and individual 
citizens. Therefore, the Administration has initiated or supports the following reforms: 

> Early identification ofaBowable activities. A joint FWS/NMFS policy directive has 
been issued that requires the Services to identify, to the extent known at final listing, 
specific activities that are exempt from or that will not be affected by the section 9 
prohibitions of the ESA concerning 'take' of listed species. In addition, this directive 
requires the identification of a single point of contact in a region to assist the public in 
determining whether a particular activity would be prohibited under the ESA. These 
initiatives will help educate the affected publics, as well as increase certainty r^arding 
the effect of species listings on proposed or ongoing activities. 

*■ Streamlining habitat conservation planning. The FWS and the NMFS have published 
a draft habitat conservation planning handbook for public review and comment. It is 
intended to provide quicker and more consistent answers to applicants for incidental take 
permits. These permits allow economic use of private land for those who develop a 



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A FAIR, COOPERATIVE AND SCIENTinCALLY SOUND APPROACH TO IMPROVING 
TOE ENDANGERED SPECIES ACT 



conservation plan under the requirements of section 10 of the ESA. The draft handbook 
recognizes three cat^ories of habitat ccmservation plans based on the level of impact to 
the conservation of species (high, medium, or low impact). It requires simplified 
procedures and £aster permitting for low and medium impact plans. 

*■ 'No surprises'. A policy of 'No Surprises' has been issued by the FWS and the 
NMFS in habitat conservation plaiming under section 10 of the ESA. Under the policy, 
landownera who develop an ^jptoved habitat conservation plan for any endangered or 
threatened species will not be subject to later demands for a larger land or financial 
commitment if the plan is adhered to-even if the needs of any species covered by the 
plan increase over time. A landowner who agrees to provide for the long-term 
conservation of listed species in accordance with an sppmved habitat conservation plan 
is assured that activities on the land can proceed widKMit having any additional mitigation 
requirements imposed, excq>t as may be provided under the terms of the plan itself. 
Ccmsequently, this policy provides die necessary assurances to landowners who are 
engaged in devel(q>ment activities over a period of many years that their habitat 
conservation planning permits will remain valid for die life of the permits. 

¥ Certainty for muM-^des planning. The CONGRESS should provide additional 
certainty to landowners who develop approved habitat conservation plans that protect 
non-listed species as well as listed species. Landowners who have satisfactorily 
demonstrated that diey will protect candidate qwdes or the significant habitat types 
within die area covered by a habitat conservation plan should be assured that their land 
use activities will not be disrupted if die candidate species or additional specific species 
not covered by the plan but dqwndent iqx» the same pr ote cted habitat type are 
subsequently listed under the ESA. 



Treat Landownen Fairly and mth Consideratkm. 

Issue DEFiNmoN : The ESA has been criticized for placing an unfair burden on 
landowners, particulariy small landownen. 

Administrat ion Position : The ESA must be administered in a manner Aat assures fair 
and considerate treatment for those whose use of property is affected by its programs. 
Therefore die Administration has initiated or siqiports die following reforms: 

^■Greater Federal re^oiuUOity. The Administration is emphasizing the importance of 
having each Federal agency fiilly meet its responsibilities for conserving species in order 
to reduce impacts to private lands. It is facilitating economic use of private land by 
placing additional federal lands in protection, by acquiring military lands when bases are 
closed, by enrolling eusting federal lands in habitat reserves, and by arranging for 
of RTC lands. 



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PROTECTING AMERICA'S LIVING HERITAGE: 



*■ Presumptions in favor of small landowners and low impact activities. For threatened 
species we will propose r^ulations that allow land use activities by landowners that 
result in incidental take and individually or cumulatively have no lasting effect on the 
likelihood of the survival and recovery of a species and, therefore, have only negligible 
adverse effects. In particular, the following activities would not be regulated under this 
proposal: 

activities on tiacts of land occupied by a single household and used solely 

for residential purposes; 

one-time activities that affect five acres of land or less of contiguous 

property if that property was acquired prior to the date of listing; and 

activities that are identified as negligible. 

In cases in which die cumulative adverse effects of these exempted activities are likely 
to be significant, the Secretary would be required to issue a special rule. The Secretary 
also would be required to consider issuing a special rule to exempt activities on tracts 
of land larger than 5 acres that are also likdy to be n^gible. 

The CONGRESS should extend this flexibility to include activities that result in 
incidental take of endangered species and the CONGRESS should provide that incidental 
take activities undertaken pursuant to an approved state conservation agreement (see 
recommendations under point 010) are not regulated. 



Create Incentives for Landowners to Conserve Species. 

Issue DEFiNmoN : Concern has been expressed that current implementation of the ESA 
fails to provide incentives for species conservation or even discourages such 
conservation. 

Administration Position : Cooperation with landowners in protecting and recovering 
species should be encouraged. Therefore, the Administration will support or has 
already initiaiBd the following reforms: 

> Incentives for voluntary enhancement. The FWS and the NMFS will provide 
incentives to landowners who voluntarily agree to enhance the habitat on their lands by 
insulating them from restrictions if they later need to bring their land back to its previous 
condition. Landowners often are interested in managing their lands in ways that have 
as a by-product substantial benefit to threatened and endangered species. However, 
landowners currently are reluctant to manage their lands in this manner because they are 
concerned that any subsequent reduction in quantity or quality of the improved habitat 
would result in a violation of the ESA. The proposed policy would apply only to those 



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A FAJR, COOPERATIVE AND SCIENTinCALLY SOUND APPROACH TO IMPROVING 
THE ENDANGERED SPECIES ACT 



situations in which it is possible to measure a conservation benefit to a species from 
habitat improvements. In those cases, landowners would not be penalized for having 
made those improvements.' 

*■ Incentives provided by other landowner provisions. In addition, the "No Surprises' 
policy and the proposed l^islative action to encourage landowners to participate in 
habitat conservation planning to protect multiple species will provide significant 
incentives for landowners to conserve species. 



Make Effective Use of Limited Public and Private Resources by Focusing on Groups 
of Species Dependent on the Same HabiUt. 

Issue DEFiNmoN : The ESA has been criticized for placing too much emphasis on single 
species and not enough emphasis on groups of species and habitats. 

Administration Position : To make effective use of limited public and private resources, 
priority should be given to multi-species listings, recovery actions and conservation 
planning. Therefore, the Administration has initiated or supports the following reforms: 

*■ Multi-speeies conservation emphasis. The FWS and the NMFS have adopted a policy 
that emphasizes cooperative ^iproaches to conservation of groups of listed and candidate 
species that are depieadent (m common habitats. It directs that multi-spedes 
listing decisions should be made where possible and that recovery plans should be 
developed and implemented for areas where multiple listed and candidate species occur. 
The policy further emphasizes the importance of int^rating federal, state, tribal, and 
private efforts in cooperative multi-species efforts under the ESA. 

p' Habitat conservation and recovery planning. In addition, the habitat conservation 
planning and recovery planning poUcies in this package encourage multi-species and 
habitat-based conservaticm efforts. 



Pfey ent Species F)rom Becoming Endangered or Threatened. 

Issue DEFiNmoN : Federal land-managing agencies, States, and others have expressed 
strong interest in having greater opportunities to put conservation measures in place that 
would remove threats to species and make their listing unnecessary. 

Administration Position : In carrying out its laws and r^ulations, the Federal 
Government should seek to prevent species from declining to the point at which they 
must be protected under the ESA. Therefore the Administration has initiated the 
following reforms: 



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PROTECTING AMERICA'S LIVING HERITAGE: 



•^ Federal/State conservation of imperiled spedes. The Forest Service, BLM, National 
Park Service, FWS and NMFS have signed an agreement with the International 
Association of Fish and Wildlife Agencies that establishes a federal-state framework to 
cooperate in efforts to reduce, mitigate, and potentially eliminate the need to list species 
under the ESA. 

*Pn-Usting conservation agreements. The NMFS and the FWS have published draft 
guidance for public review and comment that encourages and sets uniform standards for 
the development of pre-listing conservation agreements with other parties to help make 
the listing of species unnecessary. The guidance also is intended to clarify the role of 
the FWS and NMFS in conservation of candidate species and ensure that there is regular, 
periodic review of the status of candidate species to help prevent their further decline. 

> Habitat conservation planning for non-listed species. Providing additional certainty, 
as recommended above, to landowners who participate in habitat conservation plans that 
protect non-listed spedes as weU as listed species will help prevent species fiom 
becoming threatened or endangered. 



Promptiy Recover and De-list llireatened and Endancered Species. 

Issue DEFiNmoN : Concerns have been e3q>ressed that too little emphasis is placed on 
recovering and de-listing species once they have been listed. 

Administration Position : The goal of the ESA is to bring species back to the point at 
which they no longer require the Act's protection. Specifically, the Administration 
supports the following reforms to promptly restore threatened and endangered species to 
healthy status and then promptly de-list them: 

^ Effective recovery. Recovery should be the central focus of efforts under the ESA. 
Plans for the recovery of listed species should be more than discretionary bluq)rints. 
They should be meaningful and provide for implementation agreements that are l^ally 
bin<Ung on all parties. They should prescribe those measures necessary to achieve a 
speda* itocNexy in as comprehensive and definitive manner as possible in order to 
provide greater certainty and quicker decisions in meeting the requirements of the ESA. 

The CONGRESS should ensure that recovery planning: 

articulates definitive recovery objectives for populations (including levels 

that would initiate down-listing or de-listing) based on the best available 
scientific informatiai and the other requirements of the ESA; 

provides aU jurisdictional entities and stakeholders an opportunity to 

participate in development and implementation of the plan; 



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A FAJR, COOPERATIVE AND SaENTinCALLY SOUND APPROACH TO IMPROVING 
THE ENDANGERED SPECIES ACT 



seeks to minimize any social or economic impacts that may result from 

implementation ; 

emphasizes multi-species, habitat-based approaches; 

is exempted from NEPA if the planning process is equivalent to that 

required by NEPA; 



integration of natural resource and land management programs 
at aU jurisdictional levds; and 

identifies specific activities or geographic areas that arc exempt from or 

that will not be affected by the section 9 prohibitions of the ESA 
concerning "take' of species covoed by a plan. 

The CONGRESS should improve the reco>'ery planning process under the ESA by 
requiring all appropriate state and fnleral agencies to develop one or more specific 
agreements to implement a recovery plan. Upon approval of an implementation 
agreement by each of the dppropiiait state and federal agencies, the agreement should 
be l^ally binding and incorporated into the recovery plan. Recovery plans and 
implementing agreements should be reviewed and updated on a regular basis. An 
incentive should be created for federal agencies to ^jprove implementation agreements 
by providing an easier, quicker section 7 process. Such implementation agreements 
should: 

expedite and provide assurances concerning die outcome of interagency 

consultations under section 7 and habitat conservation planning under 

10 of the ESA; 



ensure diat actions taken pursuant to the agreement meet or exceed the 

requirements of tiie ESA; and 

require that each s^ipropriate agency that signs an agreement comply with 

its terms. 



t^Mon ratioaal process for designating critieal habitat. The CONGRESS should 
modify tiie timing of critical habitat designations so that they result from tiie recovery 
planning process. Specifically: 

Designation of critical habitat should be based (»i die current standards of 

die ESA and die specific recommendations in recovery plans. 



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PROTCCTING AMERICA'S LIVING HERITAGE: 



Designation should occur concunentl^ with recovery plan approval, rather 
than the current requirement that it be designated at the time of listing. 



*^Prompt down-Usting and de-Usting. Prompt down-listing and de-listing of species 
when warranted are critical to the success of the ESA. The CONGRESS should give 
these actions emphasis equal to that of listing. Specifically: 

Down-listing or up-listing should be done administratively based on 

criteria in a recovery plan that meet the standards of the ESA and should 
not be subject to the current process required for listing, de-listing and 
changes in status of a species. 

The de-listing process should be triggered when the criteria established by 

a recovery plan are met 

*■ Recovery planning deadlines. The FWS and the NMFS adopted a policy that requires 
completion of a draft recovery plan within 18 mcmths of listing and a final recovery plan 
within 12 months of completion of die draft plan. 

^^ffimative spedes conservation by Federal agencies. Fourteen federal agencies have 
entered into an unprecedented agreement to improve efforts to recover listed species. 
Each agency has a^eed to identify affirmative opportunities to recover listed species and 
to use its existing programs or authorities towaixl that end. 



9. Promote Efikieiicy and Consisteiicy. 

Issue PEFiNrnoN: The FWS and tfie NMFS have been criticized for carrying out the 
ESA inconsistently and inefficiently. 

Administration Position : The ESA should be administered efficiently and consistently 
within and between the DqKtrtments of Conmierce and the Interior. Therefore, the 
Administration has initiated the following reforms: 

>JointNMFS/FWS standards and procedures. The NMFS and the FWS are committed 
to administering the ESA in an efficient and consistent manner so that the public always 
gets one answer from die two agencies and from different offices widiin die same 
agency. The agencies will standardize dieir policies and procedures through issuance of 
joint orders, guidance, r^ulations, and increased training. Consequently, each policy 
identified in diis package is being implemented or proposed joindy by die FWS and the 
NMFS. 



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THE ENDANGERED SPECIES ACT 



•^ Joint section 7 eonsiUtation potides and pmeedures. The FWS and NMFS, for 
example, have published a draft handbook for public review and comment that will 
standaixlize the policies and procedures governing section 7 consultations between the 
Services and other federal agencies concerning actions by those federal agencies that may 
affect a listed species. 

> National federal working groups. The agreement by 14 Federal agencies identified 
above established a national interagency working group to identify and coordinate 
improvements in Federal implementation of the ESA, including identification and 
resolution of issues associated with interagency consultations undertaken pursuant to 
7(a)(2) of the Act. 



10. Provide Sute, Tribal, and Local Govemments with Opportunities to Play a Greater 
Role in Carryinc Out the ESA. 

Issue DEFiNmoN: State, tribal, and local govemments have expressed strong interest 
in greater utilization of their expertise and in playing a greater role in the ESA's 
implementation. 

Administration Position : Building new partnerships and strengthening existing ones with 
state, tribal, and local govemments is essential to achieving the ESA's goals in a fair, 
predictable, efficient and effective manner. Therefore, the Administration has initiated 
and will support the foUowing reforms to establish a new cooperative federal-state 
relationship to achieve the goals of the ESA: 

> Participation of Indian tribal govemments. The Departments of the Interior and 
Commerce will, in consultation with Indian tribal govemments, propose a policy 
directive to clarify the relationship of Indian tribal govemments to the ESA and to 
provide greater opportunities for the participation of these governments in carrying out 
the Act. 

*■ Partidpation of State fish and wUdltfe agencies. The FWS and the NMFS have issued 
a policy directive to their staff which recognizes that State fish and wildlife agencies 
generally have authority and responsibility for protection and management of fish, 
wildlife and their habitats, unless preempted by Federal authority, and that State 
authorities, expertise and working relationsiiips with local govemments and landowners 
are essential to achieving the goals of the ESA. The policy directive, therefore, requires 
that State expertise and information be used in pre-listing, listing, consultation, recovery, 
and conservation planning. It fiirther requires that the Services encourage the 
participation of State agencies in the development and implementation of recovery plans. 



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PROTECTING AMEKJCA'S LIVING HERITAGE: 



*■ Facilitate State efforts to retain management authority. The CONGRESS should 
provide a State with opportunities and incentives to retain its jurisdiction over management 
of a threatened or endangered species within its jurisdiction. Specifically: 

To encourage states to prevent the need to protect species under the ESA, 

the ESA should explicitly encourage and recognize agreements to conserve 
a species within a state among all appnqniate jurisdictional state and 
federal agencies. If a state has approved such a conservation agreement 
and the Secretary determines that it will remove the threats to the species 
and promote its recovery within the state, then the Secretary should be 
required to concur with the agreement and suspend the consequences 
under the ESA that would otherwise result from a final decision to list a 
species. The suspension should remain in place as long as the terms or 
goals of the agreement are being met. The Secretary should be authorized 
to revoke a suspension of the consequences of listing if the Secretary finds 
that a state conservation agreement is not being carried out in accordance 
with its terms. 

Conservation agreements among all ^jpropriate state and federal agencies 

within a state should be reviewed and updated on a regular basis. 

Each a^ropriate federal and state land management agency that signs a 

conservation agreement to remove threats to a species and promote its 
recovery should be required to ensure that its actions are consistent with 
the terms of that agreement. 

Suspension of the consequences of listing a species pursuant to an 

qjproved state conservation agreement should be permitted at any point 
before or after a final listing decision. 

^Special consideration of State sdent\fie information. The CONGRESS should 
recognize that the States have substantial expertise concerning species within their 
jurisdiction by requiring that special consideration be given to State scientific knowledge 
and information on whether a species should be proposed for listing under the standards 
of the ESA, as described below: 

Petitions should be sent to each affected State fish and wildlife agency. 

If a State fish and wildlife agency recommends against proposing a species 
for listing or de-listing, the Secretary should be required to accept that 
recommendation unless the Secretary finds, after conducting independent 
scientific peer review, that the listing is required under the provisions of 
the ESA. 



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A FAIR, COOPERATIVE AND SCIENTinCALLY SOIWD APPROACH TO IMPROVING 
THE ENDANGERED SPEOES ACT 



t^Lead State role on recovery planning. The CONGRESS should provide States the 
Opportunity to assume the lead responsibility for developing recovery plans and any 
component implementation agreements. 

In those cases in which a species' range extends beyond the boundaries of 

a single state, there should be a mechanism to ensure participation by and 
coordination with each affected state in the development of the plan for 
the species' recovery. 



The Secretary should approve a state-developed recovery plan unless the 
Secretary finds that it is not adequate to meet the standards of the ESA. 



> Lead State role on non-federal habitat conservation. Decisions concerning use of non- 
federal lands should be made to the extent possible by state and local governments. 
Therefore, the CONGRESS should: 

Specifically authorize a^ipropriate State agencies, as well as the 

Secretaries, to enter into voluntary pre-listing agreements with cooperating 
landowners to provide assurances that further conservation measures 
would not be required of the landowners should a species subsequently be 
listed. Landowners who have satisfactorily demonstrated that they will 
protect candidate species or the significant habitat types within the area 
covered by a pre-listing agreement should be assured that they will not be 
subjected to additional obligations to protect species if the candidate 
species or additional specific species not covered by the agreement but 
dependent upon the same protected habitat type are subsequently listed 
under the ESA. 



Provide a State widi die opportunity to assume responsibility for issuing 
pearmits under section 10(a)C2) for areas within the State which have been 
identified for such assumption in an approved recovery plan or for which 
there is otherwise an sqiproved comprehensive, habitat-based state 



► Remove obstacles to Federal/State/Tribal cooperation. Federal, state, tribal and local 
governments should be able to cooperate and fiilly coordinate their actions in carrying 
out the ESA. Specifically, the Secretary should be exempt fiom the provisions of die 
Federal Advisory Committee Act in cooperating and coordinating with state, tribal or 
local governments in carrying out the ESA. 



no 



PROTECTING AMERICA'S LIVING HERITAGE: 



CONCLUSION 

This reform package reflects the Administration's strong commitment to cany out the ESA in 
a fair, efficient and scientifically sound manner. The improvements that have been initiated and 
the legislative action recommended build on the existing law to provide effective conservation 
of threatened and endangered species and fairness to people through innovative, cooperative, and 
comprehensive approaches. 



Ill 



Testimony of 

Rolland A. Schmitten 

Assistant Administrator for Fisheries 

National Oceanic and Atmospheric Administration 

U.S. Department of Commerce 

Before the 

Endangered Species Act Task Force 
U.S. House of Representatives 

May 25, 1995 



Mr. Chairman and members of the Task Force: I am Rolland 
Schmitten, Assistant Administrator for Fisheries, National Oceanic 
and Atmospheric Administration (NOAA) , U.S. Department of Commerce. 
It is a pleasure to be here today to discuss the reauthorization of 
the Endangered Species Act (ESA) . 

The ESA is an extremely important and necessary piece of 
legislation and its basic goals should remain unchanged. The ESA 
was enacted over twenty years ago, and for the most part our 
experience has shown that the goals of species conservation and 
sustainability of commercial and recreational opportunities are 
compatible. While the ESA has worked well, the Administration has 
been making many administrative changes and has suggested some 
related legislative modifications which are reflected in the March 
6, 1995, joint ten point plan issued by Secretary Babbitt and Under 
Secretary Baker to improve the ESA. 

Introduction 

NMFS shares ESA responsibility with the Interior Department's Fish 

1 



112 



and Wildlife Service (FWS) . NMFS and FWS administer the ESA 
programs similarly, but in a few areas which I will mention, NMFS 
is unique. NMFS has jurisdiction over most marine species and the 
FWS is responsible for birds, terrestrial and most fresh water 
species. NMFS has jurisdiction over sea turtles when they are at 
sea and the FWS has jurisdiction when they are nesting on beaches. 
The two agencies share responsibility for Gulf sturgeon. 

NMFS is responsible for protection for over 30 marine and 
anadromous species under the ESA. These include whales, sea lions, 
seals, sea turtles, various West Coast Chinook and sockeye salmon; 
and Gulf and Shortnose sturgeon. Although I cannot over-emphasize 
that the ESA is meant to protect all animals, large and small, 
NMFS' listed species are truly magnificent animals. They have a 
special place culturally, aesthetically and biologically in our 
world. 

Most of the marine species that have been listed by NMFS are highly 
migratory and may have ranges across international boundaries, 
multiple states and regions of the country. Managing the recovery 
of species that travel through multiple jurisdictions including 
local, state, tribal, federal and international, requires an 
enormous amount of planning, flexibility and coordination. NMFS 
headquarters has provided oversight that has been important in 
providing for national consistency while allowing for local 
flexibility. 



113 



The ESA mandates the protection and conservation of species and 
populations that are endangered, or threatened with extinction, and 
the conservation of the ecosystems on which these species depend, 
by all Federal agencies. Our efforts to accomplish these goals 
reflect NMFS' strong environmental concerns, while not losing sight 
of other priorities for sustainable economic development and 
environmental stewardship. Our actions conserve endangered and 
threatened species, while at the same time, allowing for the 
commercial and recreational use of other marine and anadromous 
resources as well as economic opportunity. 

NMFS Stewardship of the Nation^ s Living Marine Resources 
The most efficient and effective way to conserve species is to 
prevent them from becoming threatened or endangered in the first 
place. Other environmental laws — including the National 
Environmental Policy Act, the Fish and Wildlife Coordination Act, 
the Magnuson Fishery Conservation and Management Act, the Clean 
Water Act, and the Marine Mammal Protection Act — if used 
properly, provide mechanisms to prevent listing of species. NMFS 
and other resource agencies have developed programs to conserve 
species before they become protected under the ESA. These efforts 
include habitat conservation plans, information exchange, and joint 
data collection on the status of species. 

ESA Decisions Occur at the Local Level 

Once an ESA petition is accepted for review, ESA actions begin in 



114 



NMFS' regional and field offices. The vast majority of NMFS 
employees answer directly to a regional director in one of the five 
regions. Our field personnel have established close working 
relationships with their state resource agency counterparts, the 
field offices of other Federal agencies, local governments, tribal 
organizations, and other public and private groups. 

As a former Northwest Regional Director, I know how important it is 
for NMFS personnel to have direct contact and a stake in the 
communities their actions affect. Take for example, the listing 
process. Many times it begins with a petition to NMFS from an 
individual, a fishing organization, or a local conservation group, 
requesting ESA protection for a species. Section 4(b) (3) (A) of the 
ESA requires a determination, within 90 days after receiving a 
petition, of whether the petition presents substantial scientific 
and commercial information to warrant further action. Most NMFS 
listing actions are the result of petitions received from the 
public. 

If a petition presents information that a listing may be warranted, 
NMFS initiates a status review for the species. The status review 
sets the groundwork for all subsequent actions with regard to 
conservation of the species. Therefore, in many cases, NMFS 
assembles a biological review team of scientists and other experts 
from outside the agency familiar with the species and area. They 
provide information to NMFS for use in the status review of the 



115 



species. NMFS utilizes this process to help guarantee that the 
best science is used in the initial stages of the ESA listing 
process. 

Under ESA Section 4(b) (3) (B) , NMFS makes a finding within one year 
about whether the proposed listing is warranted or not. If a 
petition action is warranted, a general notice of proposed listing 
is published. During this time the public is encouraged to and 
actively participates in public meetings and provides written 
comments on the proposed listing. The regional office reviews and 
responds to written comments. NMFS also coordinates its actions 
with state and tribal governments to provide further local input 
prior to release of the status review. All this information is 
compiled and analyzed in the field along with other information 
collected independently by NMFS. Within one year of that proposed 
listing, NMFS is required under ESA Section 4(b)(6)(A) to make a 
final determination. 

Once a species is listed, the ESA requires section 7 consultations 
be conducted with Federal agencies on activities that may affect 
the species or its critical habitat. It ensures that any action 
authorized by a Federal agency is not likely to jeopardize the 
continued existence of an endangered or threatened species, or to 
destroy or adversely modify its critical habitat. 



116 



since 1990, NMFS has conducted over 4 00 formal section 7 
consultations, including fisheries management plans over which NMFS 
has jurisdiction. In almost every case the consultations ensured 
that Federal activities could be carried out without being likely 
to jeopardize a listed species or critical habitat. Of these 
consultations, only 11 resulted in a conclusion that the activity 
would jeopardize the continued existence of listed species. In all 
11, reasonable and prudent alternatives were identified that 
allowed the activities to continue with modifications that would 
protect the species. 

We believe that in many instances the consultation process can be 
streamlined through addressing large scale programs that may 
culminate in project-specific actions. NMFS encourages the use of 
a programmatic method whenever it is appropriate to eliminate 
redundancy. NMFS has used this method in three cases where it 
issued biological opinions: hopper dredging in the southeastern 
United States (U.S. Army Corps of Engineers) ; removal of certain 
oil and gas platforms and related structures in Federal waters in 
the Gulf of Mexico (issued to the Minerals Management Service) ; and 
impact of shrimp trawling in the Southeastern United States (NMFS) . 
NMFS is also determining the feasibility of using the programmatic 
nethod for all West Coast and Alaska salmon fisheries. 

The biological opinion with Mineral Management Service, which 
addresses- structure removals, analyzes the impacts on listed 



117 



species associated with the required removal of offshore structures 
no longer needed for oil and gas production. To date more than 500 
structures have been removed under the criteria set up by the 
program opinion. This single programmatic consultation allowed for 
the removal of structures that follows set criteria and avoided the 
need for a biological opinion before each rig removal. 

NMFS must designate habitat critical for the conservation of listed 
species. Most of the marine species listed by NMFS are highly 
migratory and their ranges extend well beyond the immediate 
location of the species. For example, rookeries and other haul-out 
areas for pinnipeds (seals) are essential to their existence but 
only during very short periods of their life cycle. NMFS has 
designated critical habitat for Steller sea lions which includes 
major rookeries and haul-outs in Alaska, California and Oregon. In 
addition, two special aquatic foraging areas in the Bering 
Sea/Aleutian Islands, and a third in the western Gulf of Alaska, 
were designated. 

The designation of critical habitat, if determined to be beneficial 
to the species, should be part of the recovery process, not the 
listing process, and this is recognized in the Administration's ten 
point plan. The definition of critical habitat is tied to the 
conservation of the species, which makes it more appropriate as 
part of recovery. In addition, this would allow for further 
research and information as well as involvement of the recovery 



118 



team in the designation of critical habitat. Recovery plans are 
developed by regional teams that devise solutions utilizing the 
best available science, and taking into account the economic 
impacts of conservation actions and the views of affected resource 
users, managers, conservation groups, and other interested parties. 
The broad ESA strategy to accomplish this task directs the 
development and implementation of "recovery plans." 

In coordinating the recovery plans we use implementation teams 
involving regional representatives. The Southeastern and New 
England Implementation Teams for the recovery of the right whale 
are a good example of regionally based groups that include 
representatives from county, state and Federal agencies, private 
organizations, and researchers. The goal of the Southeastern team 
is to reduce to zero human-induced mortality caused by collision 
between right whales and the large vessels that transit this area. 
Collision is a significant impediment to the recovery of this 
species. The New England team is examining the cumulative effects 
of the multiple discharges of waste and other matter that are being 
dumped into Massachusetts and Cape Cod Bays, the effects of vessel 
traffic on whale behavior, and the potential effects of commercial 
fishing on all protected species in New England. 

Coordination of Policies 

NMFS works closely with the Department of the Interior and other 
Federal agencies to ensure that our ESA policies, guidelines, and 



119 



programs are consistent. This is essential for Federal agencies, 
which must consult with NMFS and have a duty to conserve listed 
species. It is equally important for all other groups, whether 
private or state, tribal, or local governments, to know that, when 
their activities bring them under the authority of the ESA, they 
will receive fair and consistent treatment from the Federal 
government . 

Demonstrating our commitment to operate consistently and to include 
those who are affected by the ESA within the decision-making 
process, NMFS and FWS a year ago jointly issued the following 
policies: 

1. Peer Review - This policy clarifies the role of peer review 
in ESA- related activities undertaken by NMFS and FWS. The policy 
complements — but does not circumvent or supersede — the current 
public review process in the listing and recovery programs. 

2. Recovery Planning and Participation - This policy minimizes 
social and economic impacts, consistent with timely recovery of 
listed species. It expands public participation through the public 
notice and comment period into the recovery planning process. 

3. Take Guidelines - This policy establishes procedures, when 
a species is listed, for identifying activities that will or will 
not constitute a taking of the species. 

4. Ecosystem Approach - This policy clarifies how NMFS and FWS 
will incorporate ecosystem considerations in all ESA activities. 

5. Information Standards - This policy establishes criteria, 



120 



procedures and guidelines to ensure that decisions of KMFS and FWS 
are based on the best available scientific and commercial data. 

6. Participation of State Agencies in ESA Activities - This 
policy clarifies how States participate in the ESA activities of 
NMFS and FWS — including prelisting, listing, consultation, 
recovery, and issuance of permits. 

On December 21, 1994, NMFS and FWS issued a proposed joint draft 
policy regarding the recognition of distinct vertebrate population 
segments. This policy is consistent with our November 20, 1991 
policy on applying the definition of species to Pacific salmonids. 
NMFS has had several workshops on the subject on species 
definition, including a national one in May 1994 with the American 
Fisheries Society. We will continue to hold workshops with experts 
and affected parties on this very important subject. 

Providing Certainty in Activities 

NMFS is actively engaged in efforts to protect species that are at 
risk of being listed. We are doing this most actively in the West 
where we are working with Federal, state and private landowners to 
protect anadromous fish that are not presently listed under the 
ESA. Our current focus in this eurea is to work with landowners - 
either private or state - that are already working with FWS on 
Habitat Conservation Plans for spotted owls and marbled murrelets. 
Our goal is to make it easier for these landowners to conduct 
activities while allowing for the conservation of wildlife. Then, 

10 



121 



if, for example, other salmonids are listed under ESA in the 
future, the bulk of the conservation work will have been finished, 
thus making life easier for non-Federal landowners. 

Most of NMFS' listings involve species in marine environments and 
do not affect private property owners. Through the "no surprises" 
policy jointly adopted by NMFS and FWS last year, private 
landowners participating in approved habitat conservation plans 
will be assured that they will have no increased ESA obligations, 
for species covered by a plan, for the life of the plan. 

To further assure landowners, NMFS supports the proposed Small 
Landowners Exemption. The proposed regulations will exempt the 
following from ESA prohibitions that protect most threatened 
species: activities on residential tracts of land, activities 
(including commercial) affecting 5 acres or less of contiguous 
property, and other activities identified as negligible. This is 
a major provision in the Administration's package to improve the 
ESA. NMFS strongly supports the small landowners exemptions and 
other points in the Administration's package of reforms. We think 
that it is important to clearly identify activities prohibited by 
an ESA listing. Currently, when NMFS lists a threatened species, it 
usually identifies prohibited acts under section 4(d) of the ESA. 
This flexibility is allowed for threatened species through section 
4(d) of the act, but it should also be made available for 
endangered species. By doing this, the public is given a better 

11 



122 



opportunity to understand what type of activities would still be 
permissible. 

Through an interagency working group, NMFS, FWS, and other 
interested agencies are pursuing other initiatives for 
regulatory/administrative reform, such as section 7 guidelines, to 
ensure consistency among the agencies in carrying out the mandates 
of the ESA. 

Building on Cooperative Efforts with State and Local Communities 
Section 6 of the ESA enables NMFS to develop partnerships with 
states to further species protection and conservation efforts. 
NMFS has section 6 agreements with South Carolina, Georgia, and New 
York. So far, because of funding constraints, NMFS has limited 
this program to these modest but effective efforts. In 1996 NMFS 
is requesting $2 million to expand this program. Our goal is to 
enter into at least three agreements annually until all coastal 
states that wish to participate have agreements. This effort is 
consistent with the Administration's plan to increase state 
involvement in the recovery process and facilitate the exchange of 
information among governments, academic institutions, businesses, 
and concerned individuals. 

NMFS also intends to continue using its ESA section 10 authority in 
an approach to allow designated states to regulate activities under 
that authority. In these situations NMFS will issue a broad 

12 



123 



section 10 permit to the state covering all activities subjected to 
those state regulations. This avoids the need to burden 
individuals with a layer of Federal bureaucracy in addition to 
state regulation of their activities. For example, a section 10 
incidental take permit has been issued to Idaho for sport-fishing. 
This authority allows the Idaho Department of Fish and Game to 
license recreational fishing in areas utilized by endangered and 
threatened fish. This action provides continued opportunities for 
recreational fishing. 

Conclusion 

As NMFS focuses more on the long-term goal of the ESA 
— recovery of listed species — the challenges (and sometimes the 
obstacles) become even greater. The ESA has been in effect for 
more than 2 years, and the need to protect threatened and 
endangered species is greater than it has ever been. The 
implementation of the ESA must be flexible to new challenges. This 
flexibility can be obtained through legislative or administrative 
changes. The Administration has made a series of administrative 
improvements and legislative recommendations to accomplish this 
goal. These efforts embody the Administration's philosophy of 
ecosystem based management allowing for economic development, 
recovery of listed species and the prevention of further species 
listings. 



124 



Thank you for this opportunity to testify before the Task Force. 
I will be pleased to answer any questions you may have. 



125 



STATEMENT OF 
DAVID G. UNGER, ASSOCIATE CHIEF 
FOREST SERVICE 
UNITED STATES DEPARTMENT OF AGRICULTURE 

Before the 

Endangered Species Act Task Force 

Committee on Resources 

United States House of Representatives 

Concerning Inplementation of the Endangered Species Act 

May 25, 1995 

MR. CHAIRMAN AND MEMBERS OF THE TASK FORCE: 

Thank you for the opportunity to discuss activities of the Forest 
Service involved in the implementation of the Endangered Species 
Act (ESA) on National Forest System lands. 

Review of Forest Service Statutes 

Before addressing implementation of ESA, I think it is important 
to highlight an initiative by the Department of Agriculture 
intended to make the Forest Service a more effective and efficient 
agency. On April 12, Secretary Glickman asked for a review of the 
laws, regulations, and policies that guide the management of 
National Forest System lands. At his request, a task force of 
Forest Service and Office of the General Counsel personnel was 



92-551 - 95 



formed by Under Secretary Lyons to (1) enumerate the statutes, 
regulations, and policies that guide the activities of the Forest 
Service, including those that other agencies administer that 
affect activities on National Forest System lands, (2) evaluate 
how these authorities relate to each other, whether they conflict, 
and where conflicts occur, and (3) recommend measures for 
streamlining, reducing conflicts, redundancy, and in^roving cost 
efficiency. Additional guidance has focused this effort on the 
relationships between seven key statutes, of which the ESA is 
one. The report is due to the Secretary by June 1. 

This effort reflects the Secretary's commitment to apply common 
sense to the rules and regulations that guide the Department of 
Agriculture. 

Program Regp9ngil?llitigP 

The Forest Service has multiple-use management responsibilities 
for 191 million acres of forests, rangelajids and grasslands in the 
National Forest System. The challenge for the Forest Service is 
to provide uses, values, products and services for the American 
people while ensuring protection of basic resources, including 
threatened and endangered species. As we have seen in the Pacific 
Northwest with the spotted owl and salmon issues, as an exan^le, 
this is no easy task. 



-2- 



127 

PonHP-rvation and Recovery Efforts 

About one- third of all species currently listed under the 
Endangered Species Act are knovm to occur on the National Forests 
and Grasslands. As other lands and habitats come under increasing 
human pressure, public lands are becoming more important for rare 
species and species at risk. 

The Forest Service has been successful in protecting and improving 
hcQjitat conditions for many threatened and endangered species 
throughout the United States and instrumental in focusing 
attention on international conservation efforts. With help from 
the Forest Service, the bald eagle, peregrine falcon, grizzly 
bear, eastern timber wolf, black- footed ferret, Puerto Rican 
parrot, and greenback cutthroat trout have been brought back from 
the brink of extinction. Several of these species have been or 
are under consideration for being reclassified from Endangered to 
Threatened status. 

We recognize that recovery of threatened and endangered species is 
not a quick or simple process. Recovery efforts are expensive and 
have required significant reductions in certain activities such as 
timber harvesting. In 1993, the Forest Service spent $39 million 
on measures to protect 253 listed species. Of this amount, $8.3 
million went to Forest Service research to support studies on 69 
listed species. The majority of threatened and endangered Species 



-3- 



128 



expenditures were spent on 12 species: the bald eagle, northern 
spotted owl, red-cockaded woodpecker, four Snake River salmon 
stocks, grizzly bear, gray wolf, peregrine falcon, Mexican spotted 
owl and marbled murrelet. 

Role of Forest Service Re search in the Threatened and Endangered 
S pecies Program 

Research plays a critical role in the Forest Service's management 
and recovery efforts for threatened and endangered species. 
Species are at greatest risk when we lack the basic vmderstanding 
of what an organism requires for its existence or when we are 
unable to predict how a particular ecosystem will respond to a 
change. The role of Forest Service research is to acquire both 
the knowledge of the habitat needs of threatened and endangered 
species and the cUaility to predict how threatened and endangered 
species will respond to hadsitat manipulation. Forest Service 
research has been instrumental in the successful recovery efforts 
involving the grizzly bear and red-cockaded woodpecker and in 
assisting in the ongoing recovery efforts for many other species. 

Sensitive Species Prograun 

Early on, we embraced the notion that the best way to conserve 
threatened and endangered species is by implementing a proactive 
strategy that, through protection and habitat conservation, can 
prevent the need for listing. Waiting for a species to be listed 



129 



before initiating conservation measures is simply too late. In 
1980, to formalize this approach, the Forest Service created a 
sensitive species program. Under this progreun, we identify 
species of concern and implement heibitat conservation strategies 
before their survival is clearly at risk. So far, we have 
designated about 2,300 species of plants and animals as 
sensitive. Many of these species exist together in rare or unique 
communities. Our conservation strategies emphasize ecosystem 
restoration and multi- species approaches. 

In the past year, we have increased efforts to work with other 
Federal agencies and non- federal partners to further this 
listing-prevention strategy. An agreement was signed last year 
with four federal agencies, including the two ESA regulatory 
agencies. This agreement provides the framework for avoiding 
listing under the Endangered Species Act of additional species 
through the development of conservation assessments, strategies 
and agreements. Just last week, a conservation agreement to 
protect the Arizona Willow was signed with the National Park 
Service and the U.S. Fish and Wildlife Service in cooperation 
with the Arizona Geune and Fish Department, Utah Division of 
Wildlife Resources and the White Mountain Apache Tribe. 
Implementing this agreement is designed to negate threats to this 
species and avoid the need to list it under ESA. 



-5- 



130 

Section -7 ([^""gul^^'^ion 

The consultation process is perhaps the most contentious aspect of 
ESA. Most Section 7 consultations are completed in a manner that 
allows the Forest Service to complete land management activities 
in a timely fashion. Approximately 85 percent of Forest Service 
projects are determined to: (1) not affect federally listed 
species, and therefore do not require involvement of the 
regulatory agencies; or (2) are handled through informal 
consultation when Forest Service biologists determine that an 
activity is not likely to adversely affect listed species, and FWS 
or NMFS concur. 

When formal consultation occurs, it usually is completed within 
the regulatory time fraime of 135 days from the date the action 
agency requests it (this includes 90 days to conclude the 
consultation, with the biological opinion being delivered within 
the following 4 5 days) . For Region 1 of the Fish and Wildlife 
Service (headquartered in Portland, Ore.), for example, the 
average turnaround time for Section 7 biological opinions is 83 
days, and the Region recently committed to reduce that time to 60 
days or less. 

Although we have delays in implementing Forest Service projects 
because of formal consultations not being completed within the 
regulatory time fraune, no Forest Service proposed action has been 



131 



stopped because we could not find a reasoncible alternative that 
would accommodate the needs of a listed species. 

The consultation process can be unwieldy when new information, 
such as a listing decision, comes to light when project planning 
and analysis is near completion or after a project has begun. 
Consultations must be completed before work on these projects can 
continue- -regardless of the disruption or loss of investment 
caused by the delays. This situation is especially acute when the 
consultation involves a species, such as the Snake River salmon, 
that is distributed over a broad range. The work generated by a 
new listing often strains the capabilities of the National Marine 
Fisheries Service and the Fish and Wildlife Service to complete 
timely consultations. 

There are several new interagency efforts to streamline the 
consultation process. In March, the Forest Service, BLM, Fish and 
Wildlife Service and National Marine Fisheries Service agreed to a 
joint approach for streamlining consultations related to forest 
health and timber salvage projects. In addition. Section 7 
consultations are increasingly being "batched" to facilitate 
consultation on numerous similar projects. When such 
consultations are combined, the process is expedited. Also, the 
Executive Branch agencies are working together to develop 
counterpart regulations which are intended to streamline 
consultations on progreunmatic actions. All of these efforts 
should minimize delays in the future. 



132 

mrrurft Pirection 

We fully support the purpose of the Endangered Species Act and are 
committed to effective implementation of the law. We are working 
diligently with the Fish and Wildlife Service and the National 
Marine Fisheries Service to improve interagency coordination. We 
support efforts to streamline and simplify the Act consistent with 
its objective of species conservation. We hope to work with this 
Task Force and others in efforts to improve and strecimline the 
approach to species conservation and overall resource management. 
This concludes my prepared remarks. I will be pleased to answer 
your questions. 



133 



■^Pfe 



National Association of State Departments of AcRicuLruRE 

1156 15th STRhCT. N. W. • 5(77E 1020 • Washington. DC 20005 
TUF.PHONf.: 202/296-9680' Fax: 202/296-9686 



SmON STATEMENT 



TESTIMO^fY OF 

Thomas A. Kourlis, Commissioner 

Colorado Department of Agriculture 

ON behalf of the 

National AssocL^TION of State Departments of Agriculture 

before the 

House Committee on Resources 

Task Force on Endangered Species Act 

U.S. House of Representatives 

May 25, 1995 

re: ReauthorizatUm of the Endangered Species Act 

Good morning Mr. Chairman. My name is Tom Kourlis, and I am the Commissioner of the Colorado 
Department of Agriculture and Chairman of the Endangered Species Committee for the National Association 
of State Departments of Agriculture (NASD A). It is a pleasure to appear before this Task Force on behalf 
of NASDA to discuss the reauthorization of the Endangered Species Act (ESA). NASD A is the nonprofit 
association of public officials representing the Commissioners, Secretaries and Directors of Agricultiu'e in 
the fifty states and the territories of American Samoa, Guam, Puerto Rico, and the Virgin Islands. As the 
chief state agriculture officials, NASDA's members are keenly aware of the importance of balancing 
agriculmral production and natural resource conservation on their state's and the nation's economy. 

I am a sheep and cattle rancher in northwestern Colorado and am actively involved in the ranch my father 
founded in 1926. I have managed the ranch on behalf of myself and three generations of my family for 22 
years. My ranch is located in the Axial Basin along the Yampa River, which is a tributary to the Colorado 
River. The reach of the Yampa River that runs through my meadows has been designated as critical habitat 
for endangered fish species. 

Neighboring rangeland is being considered as a site for fumre reintroduction of endangered black footed 
ferrets, which have been raised in captivity. If that happens, many business activities, including grazing 
sheep and cattie, will be affected within a seven-mile radius of the ferrets' new home. 

Implementation of the ESA 

I am here today to discuss how we can make the Endangered Species Act better, and how it can be made 
to work for those of us in agriculture who are in a position to voluntarily cooperate with species recovery 
efforts. 



NASDA IS A NONPROFIT ASSOCIATION OF PUBLIC OFFICIALS REPRESENTING THE COMMISSIONERS. 

Secretaries and Directors of agriculture in the fiftt states and four TEiutnoRiES. 



134 



In my view, the protection of threatened and endangered species depends on three key principles: 1) 
Developing coopierative relationships among federal, state, and local governments, and private landowners 
to defuse the fear of federal authority; 2) Assuring that recovery efforts include not only biological integrity 
but also cost effectiveness; and 3) Setting realistic goals so that recovery programs have credibility with 
citizens who will be willing to participate. The success of new, cooperative relationships between those 
affected by the Endangered Species Act will depend on rewriting the Act in such a way that all vested parties 
share management decisions. 

With over 20 years experience with the ESA, we have too few biological successes and too many instances 
of failure. Perhaps Congress should consider a different approach to ESA implementation. Let me offer 
a suggestion. 

States should be given more authority so as to balance the powerful role of the U.S. Fish and Wildlife 
Service (FWS). The FWS currently holds all the cards, and this structure breeds resentment, distrust and 
gridlock in all implementation phases. If states shared more of the decisions for the success of ESA 
recovery plans, the atmosphere for cooperation and consultation would be greatly improved. I am endorsing 
neither federal primacy nor state primacy; what I am proposing is a federal-state partnership. 

Such partnerships must offer all parties certainty what their public and private investments and activities will 
not be sacrificed, and that the costs of implementing the Act will be boriK by society as a whole and not 
solely by the individual landowner, nonfederal landowners and federal land users (through permit fees). 

It is my opinion that much of the controversy surrounding the existing Act is the result of an overzealous 
attempt to pursue "perfect" solutions to declining species problems. Those of us who have spent our lives 
watching the unpredictable and imponderable ways of nature know that often we must settle for something 
"good" rather than "perfect"— but, something that works. We must decide when "good" is good enough 
to meet the needs of declining species as well as the goals of society. 

Let me give you an example. In order to hasten recovery of endangered fish and in keeping with the 
program goals of having a recovered species, should we not take fertilized eggs from the endangered fish 
that are native to the region and raise hundreds of offspring in captivity and release them into the critical 
habitat areas to jump start the recovery, rather than waiting for the self propagation of the species through 
habiut modification? A similar effort was initiated in Colorado, but when the fish were mature fish, the 
Fish and Wildlife Service denied permission to release them in the river. 

While I recognize that this is met with resistance by some who are concerned about the preserving the purity 
of diverse gene pools, captive breeding and reintroduction will not replace habitat improvement plans as a 
means of recovering self-sustaining populations, but it will greatly improve the odds of success. And, it 
may prevent the extraordinary expense of excessive habitat restoration. 

"Whole Farm/Ranch Plans" and "Safe-Haven Agreements" 

Let me turn to the tools that are needed to realize these goals. NASD A is one of the national agricultural 
organizations proposing just such a voluntary, incentive-based partnership. We support the concept of 
voluntary "total resource management plan" for farmers and ranchers. As proposed by NASDA, these 
whole farm and ranch resource plans — which could include soil erosion management, crop nutrient 
management, integrated pest management, animal waste management, water quality goals, range 
management, wetlands management, and species habitat management — will provide the technical and 
financial assistance necessary for farmers and ranchers to voluntarily enhance their resources and provide 
improved wildlife habitat. Such plans will allow fanners and ranchers to act rather than react, providing 
better habitat for species before they become threatened or endangered. 



135 



These plans would address multiple species habitat conservation on private land in a voluntary fashion and 
approval of such a plan should give landowners the certainty they would be in compliance with provisions 
of the Endangered Species Act. We strongly encourage this Task Force to include language in the 
reauthorization of the Endangered Species Act that would recognize an approved whole farm or ranch 
natural resource plan, and its implementation as a compliance mechanism for the Endangered Species Act. 
This is a compatible approach to that taken by the House when it recently passed H.R. 961, a bill to 
reauthorize the Clean Water Act (CWA). H.R. 961 provided that a fanner or rancher who develops and 
implements a whole form or ranch natural resource management plan will be in compliance with the CWA. 

We also support the concept of a "safe-haven" agreement. Such an agreement would allow designated state 
agencies to enter into voluntary, pre-listing agreements with landowners to assure habitat conservation of 
candidate species. A landowner with such a plan to address the needs of habitat conservation would not face 
additional obligations under the Endangered Species Act if the candidate species, or another unforeseen 
species, were to be listed at a later time. 

This concept, which is very similar to the "No Surprises" policy and the "Voluntary Incentives for 
Landowners" outlined by the Secretary of Interior in March, 1995, would defuse the fears that many 
landowners have about voluntarily creating wetlands or wildlife habitat on their farms. In many cases, 
fanners who would prefer to enhance wildlife habitat resist doing so out of fear of the Endangered Species 
Act. They realize that the arrival of an endangered species on their property can trigger costly regulatory 
procedures and severely limit their options for using their land. "Safe-haven" and "whole farm/ranch 
plans" language in the reauthorization would remove those fears, and offer safety and certainty not only for 
imperiled species but also for property owners. 

Cost EFFECTivE>fEss 

In this era of limited federal resources species listing and designation of critical habitat should take into 
consideration the cost-effectiveness and the probability of success of a recovery program. It will be 
increasingly important to insist that recovery programs have a high probability of success before investing 
scarce resources in them. This may mean a return to a "triage" approach that first addresses the neediest 
species with the greatest probability of recovery. This approach will be necessary as tax dollars are 
stretched to cover other crucial societal needs. Common sense dictates that in a era when we are considering 
maximizing effectiveness in all government programs, we must also examine the social and economic 
impacts of listing endangered species. 

We should avoid duplication between state and federal recovery efforts by streamlining ESA regulations: 
1) for the listing of species; 2) for the designation of critical habitat; 3) for recovery programs; and, 4) for 
delisting species based on clearly defined recovery goals that are specified at the begiiming of the recovery 
effort. 

REAUTHORIZATION OF THE ESA 

In addition to specific language on whole farm and ranch natural resource management plans and "safe- 
haven" agreements mentioned above, the following should be considered when reauthorizing the Act. 

• The reauthorization should tighten the listing process to require petitioners to have a greater burden 

of proof showing that the listing is needed. The requirement of "substantial information" needs to 
be defined more comprehensively and reviewed by third-party peers to make sure that an adequate, 
scientifically-defensible argument exists for listing a species. If information exists that contradicts 
the need for listing, that information should receive equal analysis and peer review in the listing 
process. 



136 



• A great deal of confusion, controversy and expense has arisen from language in the Endangered 
Species Act that does not define "species" and "subspecies" and "population" with the generally 
accepted definitions used by biologists (CRS Report 92-944 ENR, Dec. 15, 1992). It is particularly 
important that "subspecies" be differentiated from "populations" in the language of the law so that 
arbitrary and inconsistent interpretations are not made when listing species. While it is important 
to protect species, it is not feasible to protect each discrete population of a subspecies. 

Critical habitat should be limited to the area where there is a realistic possibility of recovering the 
species rather than requiring that the entire historic range be included. This often jeopardizes 
existing or ftiture private land uses. Listing of species should be delayed until realistic critical 
habitat has been designated for recovery purposes. 

The reauthorization of the Act should allow the Secretary of Interior to defer the recovery of species 
to the states if the states have recovery programs in place to conserve the appropriate habitat. State 
programs, approved by the Secretary of Interior, should serve as a reasonable and prudent 
alternative for Section 7 consultations on federal actions. 

• Recovery plans should have clearly defined goals with measurable objectives. Adaptive management 
is desirable in that it allows recovery programs to adjust to the unpredictable biological responses 
to habitat modification. However, sole reliance on adaptive management can result in disputes 
among scientists as to what constitutes sufficient progress and successful recovery. Agreed upon 
goals should be set at the outset, and adaptive management should be used to reach them. 

Delisting of recovered species should occur promptly after recovery goals are met. 

Conclusion 

In closing, the reauthorization bill should stress voluntary cooperation within the structure of the 
Endangered Species Act to meet its goals. There is good reason for that view. In December, 1994, the 
United Stated General Accounting Office published "Endangered Species — Information on Species 
Protection on Non-federal Lands." The report points out that the predominant number of species protected 
under the ESA have the major share of their habitat on nonfederal lands. Specifically, of the 781 listed 
species for which the Service was responsible as of May, 1993, 712 — over 90 percent — have habitat on 
nonfederal land. 

It is clear to me that the federal government simply does not have the resources to continue to force those 
state, tribal, and local governments, and private landowners into compliance or to hold public projects 
hostage while species protection programs proceed at a snail's pace. If the Act is to be effective and to 
realize its goal of recovering species and restoring habitat, it must enlist landowners as active partners. 



137 



STATEMENT OF DANIEL SIMBERLOFF, ROBERT 0. LAWTON 
DISTINGUISHED PROFESSOR OF BIOLOGICAL SCIENCE, FLORIDA STATE 
UNIVERSITY, TALLAHASSEE, FLORIDA MAY 25, 1995 

Mr. Chairman and other members of the committee, I am 
grateful for the opportunity to discuss scientific issues 
regarding protection of threatened and endangered species. 

THE PROBLEM 

Currently 728 species of animals and vascular plants are 
listed as Endangered or Threatened under the Endangered 
Species Act. Most of these are threatened by destruction of 
their habitat, mirroring the trend worldwide. For example, 
67% of all threatened vertebrates are threatened by habitat 
destruction (Prescott-Allen and Prescott-Allen 1978), while 
90% of all threatened freshwater fishes in North America are 
threatened by habitat destruction (Wilson 1992). The second 
greatest cause of imperilment is the impact of introduced 
species, and the greatest impact of these species is that 
they change the habitat (U.S. Congress, O.T.A. 1993). So 
habitat destruction is the key to the crisis of species loss. 

And it is, a crisis. Even though species have gone 
extinct throughout the history of life, they are doing so at 
about 100 times historic rates for well-studied groups like 
birds and mammals (Groombridge 1992) . Just in the last 3 
centuries there have been about 58 mammal extinctions, 115 
bird extinctions, and at least 191 mollusc extinctions, and 
most of these took place within the last century. And these 
are of particularly well -studied groups in which the species 
are often widespread. For other kinds of organisms, there is 
every reason to believe that even more species have gone 
extinct, in some instances without our ever having studied 
them. The main reason we can say this with some certainty is 
ecology's oldest law, the species -area relationship, an 
empirical law which says that, on average, about half the 
species in a site are lost for every 90% reduction in area 
(Simberloff 1988). So, unless the unstudied species fail to 
conform to a relationship that every well -studied group of 
species obeys, we can extrapolate from known amounts of 
habitat destruction to say that the number of extinctions 
occurring is several times the documented number for poorly 
studied groups or regions. 

The problem is acute in the United States: just in the 
last century we have lost 18 bird species (Ehrlich et al. 
1992), 17 freshwater fish species (Miller et al. 1989), and 
11 freshwater mussel species (Wells et al. 1983), as well as 
over 200 plant species (Wilson 1992). And currently about 



138 



22% of our vertebrates, 31% of our plants, and 60% of our 
freshwater mussels are critically imperilled (N.H. D.C.N. 
1993). These are staggering percentages. The fact that most 
of these species are not listed under the Endangered Species 
Act simply reflects the delay in doing the requisite studies 
and paperwork. 

HOW TO SAVE THESE SPECIES 

1. What science can offer 

The science of conservation biology has matured rapidly, 
particularly with the recognition that genetics and refuge 
design play key roles in maintaining species (Simberloff 
1988). It has a large professional organization, the Society 
for Conservation Biology, which publishes a widely respected 
journal ( Conservation Biology ) . while two other international 
journals ( Biological Conservation and Biodiversity and 
Conservation ) also deal with the full gamut of conservation 
science issues. Conservation biology has developed in 
typical cyclical scientific fashion by consideration of many 
ideas, rejection of those that did not fit the data, and use 
of the data to form better ideas, which in turn were tested, 
and the entire cycle started anew. A new textbook (Meffe and 
Carroll 1994) summarizes the impressive achievements of 
conservation biologists in determining causes of endangerment 
and extinction and various ways to deal with these phenomena. 

However, I have occasionally heard conservation 
biologists unfairly blamed for our extinction crisis, on the 
grounds that they do not know how to save endangered species 
and ecosystems. Actually, they do know how to save 
endangered species and ecosystems, but the assigned task is 
never how to conserve a species or ecosystem. Rather, it is 
how to save a species but at the same time preserve certain 
human enterprises at a certain level. The considerations are 
predominantly economic, political, and sociological, not 
scientific. Conservation biologists are asked what is the 
minimum size of a population or of an ecosystem that can 
possibly survive, and are asked to determine such things very 
quickly, often in a few months or, at most, two years. Such 
"minimalism" is the subtext for most conservation decisions; 
small wonder that conservation biologists are seen as 
unsuccessful! If physicians were forced to develop 
treatments within a few months, then give the absolute 
minimum amount of any treatment or pharmaceutical consistent 
with survival or recovery of their patients, their failure 
rate would doubtless increase and their recommendations would 
be more debatable. Yet medicine would not be a poorer 
science because of different demands placed on it. 



139 



Conservation science is not a chief culprit in the extinction 

crisis. 

2. The critical role of habitat 

Because habitat destruction is the main cause of loss and 
imperilment of species, it comes as no surprise that saving 
them will require determination and protection of their 
critical habitat. The specific habitat requirements of each 
species are often subtle, but sufficient study always reveals 
them, and most species simply cannot be maintained outside 
their habitat. Fortunately, the habitat requirements of many 
species are similar enough that large groups of species can 
be maintained together in the same habitat. 

Sufficient habitat conservation will require many 
partnerships among federal, state, and private landowners, 
because only 50% of federally listed species occur on federal 
lands (N.H. D.C.N. 1993). As just observed, many listed and 
candidate species occur in clusters because they have similar 
habitats, so that saving particular waterbodies and tracts of 
land can save numerous species simultaneously. 

3. The phenomenon of "death from a thousand cuts" 

The cumulative impact of numerous small losses of 
habitat, no one of which would appear to be the single loss 
that pushes a species irrevocably on the path to extinction, 
can be deadly (Odum 1982, Beanlands et al. 1986). This fact 
is increasingly evident as conservation biologists have come 
to understand that some species are structured as 
metapopulations , groups of populations occupying discrete 
sites, each occasionally going extinct locally, all loosely 
united by occasional movement of individuals between them 
(Hanski and Gilpin 1991) . When the occupied sites become too 
isolated, movement is insufficient to compensate for ongoing 
local extinction and the entire metapopulation collapses - 
species extinction ensues. The fact that some species are 
structured as metapopulations means that even empty but 
suitable sites are critical to the maintenance of many 
species ( e.g .. Lande 1988). 

4. Captive breeding can play at most a very minor role. 

Captive breeding will not be of much help in dealing with 
the massive threat of extinction. For one thing, it is far 
too expensive; at most 900 terrestrial vertebrates (of ca. 
23,000 worldwide) could be maintained this way in all the 
world's zoos, and even this number would require dramatic 
increases in zoo research and funding (Conway 1988) . 



140 



Invertebrates and plants, which have far more species, 
present similar problems. Further, any attempt to maintain a 
substantial fraction of our species by captive propagation in 
order to allow continued habitat destruction will exacerbate 
the problem, as an ever- increasing number of species will 
require this assistance. But the most insidious fault with 
this solution is that continued captive propagation 
inevitably entrains natural selection for genotypes that are 
ill-adapted to life outside the propagation facility. In 
other words, the species evolve to be unsuited to nature. 
There are already numerous species in this bind, which must 
be maintained in parks and zoos; some of these species, like 
the European bison (or wisent) , are large animals requiring 
massive amounts of food and space. 

Further, any attempt to augment dwindling natural 
populations with captive-reared individuals carries 
substantial threats. Numerous populations of salmonid fishes 
that are highly adapted to local environments have been 
threatened or eliminated by interbreeding with hatchery- 
reared fishes (Allendorf and Waples 1995). Some of the lost 
traits were highly specific movement tendencies that allowed 
fishes to find the proper sites for spawning, and others were 
characteristics that simply make individuals more fit 
generally. In fact, a pervasive problem with interbreeding 
of individuals from nature and stocks reared in captivity, in 
both plants and animals, is "outbreeding depression," in 
which fitness of offspring and later generations declines 
because of the break-up of highly coadapted gene complexes 
(Simberloff 1988). In some fishes, such as the Coho salmon, 
the widespread use of hatchery stocks has had the perverse 
effect of causing entire species to evolve away from the 
traits prized for sport fishing and towards smaller and much 
less aggressive individuals (Gross 1991). 

5. List species based on population trends, not just sizes 

For most of the species that have been listed under the 
Endangered Species Act, population sizes were already quite 
low - they averaged ca. 1000 individuals for animals and ca . 
100 individuals for plants (Wilcove et al. 1993) . A very 
small number of individuals automatically puts a species at 
risk of extinction from numerous forces (Simberloff 1988), 
both ecological and genetic. Further, many species have gone 
extinct rapidly after their apparently substantial 
populations declined monotonically , for the most part before 
anyone noticed; all it takes for an apparently healthy 
species to be among the "living dead" is for average birth 
rate to be even slightly less than average death rate. And 
quite often, adult individuals of a species can survive but 



141 



breeding is rare or non-existent. In such a case, one would 
not see unusual death rates, and one might even see an 
apparently healthy population, but absence of recruitment has 
doomed the species. This phenomenon could be particularly 
dangerous in long-lived species; it would take years to know 
that there is an inexorable downward trend. Also, for many 
species, the real threats occur only episodically; most of 
the time populations are more than large enough to put them 
out of danger, but occasional "ecological crunches," caused 
by a severe winter, a hurricane, or other unpredictable 
events threaten their existence (Wiens 1989). 

In short, it is impossible to tell for many species if 
they are on a course to extinction without demographic 
studies (Schemske et al. 1994), and such studies require 
years of monitoring, particularly for long-lived species. 
Even when there are many populations of a species, without 
intensive study of reproduction, mortality, and dispersal, 
one cannot be certain that a species' existence is not 
precarious, or even which populations are crucial to its 
existence. One development of the growing understanding of 
metapopulation structure is that some metapopulations 
comprise a few source populations, which produce most of the 
individuals that maintain the species, and many sink 
populations, which, though they may have many individuals, 
are irrelevant to population persistence (Pulliam 1988) . One 
cannot determine which populations are sources and which are 
sinks without extended demographic research. 

In sum, to determine whether a species is on a course 
towards extinction, we must study population trends. We know 
exactly how to do this, but it is not a short-term process. 

6. Beware of crucial species interactions 

In innumerable instances, one or several species depend 
utterly on another species ( e.g . Meffe and Carroll 1994) , and 
we cannot determine these dependencies without exhaustive 
study. We know how to conduct such research, but it is 
detailed and time-consuming. Often we discover the crucial 
role of some apparently rare and insignificant species 
inadvertently, when we lose it. The general concept of the 
keystone species (Paine 1969) is relevant. A key plant 
pollinator or disperser may play this role, for example. 
Often a predator or parasite controls a species that would 
otherwise completely dominate space, outcompeting many other 
species. Remove the predator or parasite and the formerly 
suppressed species becomes dominant, driving other species at 
least locally extinct. 



142 



There is a tradition of excellent, meticulous 
experimental research that detects these interspecific 
relationships and the keystone role played by particular 
species. This is expensive and time-consuming research, but 
there is no cheap shortcut available. 

REFERENCES 

Allendorf, F.W. , andR.S. Waples. 1995. Conservation and 
genetics of salmonid fishes. In press in J. Avise and 
J. Hamrick (eds.). Conservation Genetics: Case Histories 
from Nature. 

Beanlands, G.E. , et al. 1986. Cumulative Environmental 
Effects: A Binational Perspective . Ottawa: Canadian 
Environmental Assessment Research Council, and 
Washington, D.C.: National Research Council. 

Conway, W. 1988. Can technology aid species preservation? 
Pp. 263-268 in E.O. Wilson (ed.). Biodiversity . 
Washington, D.C.: National Academy Press. 

Ehrlich, P.R. , D.S. Dobkin, and D. Wheye. 1992. Birds in 
Jeopardy . Stanford, California: Stanford Univ. Press. 

Groombridge, B. 1992. Global Biodiversity. Status of the 
Earth's Living Resources . London: Chapman 6e Hall. 

Gross, M.R. 1991. Salmon breeding behavior and life history 
evolution in changing environments. Ecology 72:1180-1186. 

Hanski , I., and M.E. Gilpin. 1991. Metapopulation dynamics: 

brief history and conceptual domain. Biol. J. Linn. 
Soc. 42:3-16. 

Lande . R. 1983. Demographic models of the northern spotted 
owl ( Strix occidentalis caurina) . Oecologia 75:601-607. 

Meffe, G.K., and C.R. Carroll. 1994. Principles of 

Conservation Biology . Sunderland, Massachusetts: Sinauer. 

Miller, R.R. , J.D. Williams, andJ.E. Williams. 1989. 

E:-:tinctions of North American fishes during the past 
century. Fisheries 14:22-38. 

Natural Heritage Data Center Network. 1993. Perspectives on 
Species Imperilment . Arlington, Va. : The Nature 
Conservancy. 

Odum, W.E. 1982. Environmental degradation and the tyranny 



143 



of small decisions. BioScience 32:728-729. 

Paine, R.T. 1969. A note on trophic complexity and community 
stability. Amer. Natur. 103:91-93. 

Prescott-Allen, R. , and C. Prescott-Allen. 1978. Sourcebook 
for a World Conservation Strategy: Threatened 
Vertebrates . General Assembly Paper (United Nations 
Doc. GA 78110). 

Pulliam, H.R. 1988. Sources, sinks, and population 
regulation. Amer. Natur. 132:652-661. 

Schemske, D.W., B.C. Husband, M.H. Ruckelshaus , C. 

Goodwillie, I. Parker, andJ.G. Bishop. 1994. Evaluating 
the approaches to conservation of rare and endangered 
plants. Ecology 75:584-606. 

Simberloff, D. 1988. The contribution of population and 
community biology to conservation science. Annu. Rev. 
Ecol. Syst. 19:473-511. 

U.S. Congress, Office of Technology Assessment. 1993. Harmful 
Non- indigenous Species in the United States . Washington, 
D.C.: U.S. Government Printing Office. 

Wells, S.M., R.M. Pyle , andN.M. Collins. 1983. The 
I.U.C.N. Invertebrate Red Data Book . Gland, 
Switzerland, and Cambridge: International Union for the 
Conservation of Nature. 

Wiens, J. 1989. The Ecoloev of Bird Communities . Vol. 2. 
Cambridge: Cambridge University Press. 

Wilcove, D.S., M. McMillan, andK.C. Winston. 1993. What 

exactly is an endangered species? An analysis of the U.S. 
endangered species list: 1985-1991. 

Wilson, E.O. 1992. The Diversity of Life . Cambridge, Mass.: 
Harvard University Press. 



144 



POSSIBLE IMPLICATIONS FROM ESTIMATING TROPICAL EXTINCTIONS FOR 
BIODIVERSITY POLICY 



Patrick Kangas 

Natural Resources Management Program 

University of Maryland 

College Park, Maryland 20742 

Introduction 

Loss of biodiversity due to human actions has become one of 
the critical environmental issues facing governmental and non- 
governmental organizations in the United States and other 
countries. Biodiversity is a natural resource and an endowment 
of a country and its loss through extinction results in a decline 
in natural capital that can not be restored. Thus, the challenge 
to develop effective public policies for controlling loss of 
biodiversity is especially important because of the irreversible 
nature of the extinction process. 

Biodiversity policy has focused on species protection but 
there is growing recognition that other levels or types of 
biodiversity, ranging from genes to landscapes, also require 
protection. Species are a fundamental unit of biodiversity and 
can be monitored by population counts. Knowledge of species 
extinction rates is needed for policy making but extinction is 
difficult to quantify for a number reasons such as the large 
spatial scale of the process and the lack of taxonomists who can 
identify species. The purpose of this paper is to review some 
problems with estimating tropical extinctions and to suggest 
implications for biodiversity policy. 

Estimating Tropical Extinctions 

The Tropics is characterized by high biodiversity and fast 
growing human populations that threaten biodiversity through a 
number of environmental impacts. Deforestation, which results in 
loss of habitat for terrestrial species, is one of the most 
serious impacts in forested regions of the Tropics. Several 
early modelling efforts simulated growing population pressure and 
deforestation in simple biodiversity models which predicted mass 
extinction of tropical species might occur within a few decades 
(Lovejoy 1980, Ehrlich and Ehrlich 1981) . These initial models 
were appropriate since knowledge about tropical extinctions was 
extremely limited. Although refinements in the early modelling 
efforts suggested reduced extinction rates or at least more 
caution in estimating tropical extinctions (Lugo 1988, Lugo et 
al. 1993, Simberloff 1986, Wright 1987, Kangas 1986, 1987, 1991, 
1992) , a belief developed in the general public that the tropical 
mass extinction event was real and currently underway. This 
belief is reflected in the literature and advertisements of 
publishers, businesses and conservation organizations that 



145 



indicate extremely high extinction rates. For example, one 
publisher states in an advertisement for a book on tropical 
forests that "in the next 15 minutes, a plant or animal species 
will become extinct". Another advertisement for conservation 
fund raising notes that "half the species on earth will die 
unless we act now. " These statements are exaggerations and they 
are not based on the best scientific evidence. An issue of 
concern is how these exaggerations will affect conservation 
action. Several examples of political backlash to conservation 
from exaggerations have occurred in Brazil (Kangas in press) and 
more studies are needed on belief formation and scientific 
credibility in these kinds of political issues of conservation. 

Possible Implications for Biodiversity Policy 

Although extinction rates are much higher in the Tropics 
than in the United States, some similarities may exist (Schindler 
1989) . There is a continuing need for more information on the 
extinction process but public policy must be developed with the 
best existing information. In the United States the Endangered 
Species Act is the primary mechanism of biodiversity policy and 
similar governmental regulations exist in tropical countries. As 
these policy instruments evolve, it may be useful to build on 
experiences in conservation from the Tropics and from the United 
States. Three possible implications from the tropical experience 
are listed below. 

1) Much is known about United States biodiversity and its loss 
due to human impact, compared to available information on the 
Tropics. United States policy makers are obliged to take 
advantage of this scientific knowledge to develop the most 
effective biodiversity policy possible. Extinction rates have 
not been exaggerated in the United States, as has happened in the 
Tropics, and policy makers should continue to insist on high 
levels of scientific input to the political process of policy 
formation. 

2) The high diversity of tropical species may require that 
tropical countries move away from individual species as a focus 
of biodiversity policy, as is the case with the United States 
Endangered Species Act, to focus on larger scale unites of 
biodiversity. Although it may be possible to focus on individual 
species in the United States, because of our greater knowledge 
and resources, perhaps new directions of conservation policy 
should be implemented that give strong consideration to the 
landscape level of biodiversity along with the species level. 

3) Some of the scientific community has shifted away from the 
difficult problem of estimating tropical extinctions to consider 
ways of achieving sustainable development in the Tropics. This 
represents a change in approach to conservation from the polarity 
of "environment vs. economy", which has come to dominate United 
States biodiversity policy. An alternative is to search for 
innovative systems of man and nature in which biodiversity is 



146 



demonstrated to have high value. Perhaps this approach should be 
an explicit goal for future biodiversity policy formation in the 
United States. 

In conclusion, the Endangered Species Act has many problems 
(Harris and Frederick 1991, Kohm 1991, Mann and Plummer 1995) but 
it remains as a solid foundation on which to build biodiversity 
policy. Its strengths can be capitalized on, along with new 
ideas from conservation biology, to develop effective and 
adaptive biodiversity policy for the future. 

Literature Cited 

Ehrlich, P. and A. Ehrlich. 1981. Extinction. Ballantine Books, 
New York . 

Harris, L. D. and P. C. Frederick. 1991. The role of the 
Endangered Species Act in the conservation of biological 
diversity: An assessment. In: J. Cairns, Jr. and T. V. Crawford 
(Editors), Integrated Environmental Management. Lewis Publishers, 
Chelsea, Michigan, pp. 99-117. 

Heywood, V. H. and S. N. Stuart. 1992. Species extinctions in 
tropical forests. In: T. C. Whitmore and J. A. Sayer (Editors). 
Tropical Deforestation and Species Extinction. Chapman and Hall, 
London . pp . 91-117. 

Kangas, P. 1986. A method for predicting extinction rates due to 
deforestation in tropical life zones. Abstract. IV International 
Congress of Ecology Meeting Program: 194. 

Kangas, P. 1987. On the use of species area curves to predict 
extinctions. Bull. Ecol . Soc . Amer. 68:158-162. 

Kangas, P. 1991. Macroscopic minimodels of deforestation and 
diversity. Ecol. Modelling 57:277-294. 

Kangas, P. 1992. Undiscovered species and the falsif lability of 
the tropical mass extinction hypothesis. Bull. Ecol. Soc. Amer. 
73 :124-125. 

Kangas, P. in press. Tropical Sustainable Development and 
Biodiversity. In: M. Reaka-Kudla and D. Wilson (Editors). 
Biodiversity, From 1986 to the 21st Century. 

Kohm, K. A. (Editor). 1991. Balancing on the Brink of Extinction. 
Island Press, Washington, DC. 

Lovejoy, T. E. 1980. A projection of species extinctions. In: G. 
O. Barney (Study Director), The Global 2000 Report to the 
President, 2. Council on Environmental Quality, U. S. Government 
Printing Office, Washington, DC. pp. 329-331. 



147 



Lugo, A. E. 1988. Estimating reductions in diversity of tropical 
forest species. In: E. O. Wilson (Editor), Biodiversity. National 
Academy Press, Washington, DC. pp. 58-70. 

Lugo, A. E., J. A. Parrotta and S. Brown. 1993. Loss in species 
caused by tropical deforestation and their recovery through 
management. AMBIO 22:106-109. 

Mann, C. C. and M. L. Plummer. 1995. Noah's Choice, The Future of 
Endangered Species. Alfred A. Knopf, New York. 

Schindler, D. W. 1989. Biotic impoverishment at home and abroad. 
BioScience 39:426. 

Simberloff, D. 1986. Are we on the verge of a mass extinction in 
tropical rain forests? In: D. K. Elliott (Editor) , Dynamics of 
Extinction. Wiley, New York. pp. 165-180. 

Wright, D. H. 1987. Estimating human effects on global 
extinction. Int. J. Biometeor. 31:293-299. 



148 



Testimony on The Endangered Species Act 

Terry L. Maple, Ph.D. 

May 25, 1995 




149 



Testimony on the Endangered Species Act 

Terry L. Maple, Ph.D. Professor of Psychology. Georgia Institute of Technology, and 
Chief Executive Officer. Zoo Atlanta. 
25 May. 1995 



I am truly grateful for the opportunity to discuss the Endangered Species Act 
and the reasons that I support its reauthorization. For twenty years I have been a 
college professor, teaching courses in 'Environmental Psychology," and "Animal 
Behavior". I have had the pleasure of teaching both undergraduate and graduate 
students at the University of the Pacific, the University of California at Davis, Emory 
University, and Georgia Tech. For the past eleven years I have been employed as the 
Chief Executive of Zoo Atlanta. While I have spent a fair amount of time as an 'ivory 
tower theoretician," my recent experiences have required that I meet a payroll, balance 
a budget, plan strategically, set priorities, recruit and manage talent, market a product, 
and make hard business decisions daily. In my widlife travels. I have enjoyed pristine 
wilderness, and I have suffered within the most degraded, dehumanized landscapes. 
The contrast is instructive. More than ever, we need to protect our worid heritage of 
wildlife ecosystems. Zoos and Aquariums are institutions that represent the interests 
of wildlife and the millions of people worldwide who value and enjoy it. 

I manage one of the worid' s leading zoos, an enterprise whose employees wori< 
every day to actively "share the joy and wonder of wildlife." Neariy a million people 
will visit Zoo Atlanta this year, while some 40.000 households are paid members in 
our local support group, the "Friends of Zoo Atlanta.' Our nonprofit corporation is 
comprised of 1 1 5 full time staff, more than 1 .000 trained volunteers, and 1 50 seasonal 
employees. Our 1995 operating budget exceeds $9 million. Zoo Atlanta is a culural 
institution in the business of managing, propagating, exhibiting, and conserving 
wildlife in zoos, parks, and reserves. We aim to educate, inspire, and provide 



150 



enjoyment and recreation for cur visitors. We are essentiaiiy a business patronized by 
families. 

Zoo Atlanta has been acknowledged as one of America's most successful 
public/private partnerships. The zoo receives no operating subsidies from local or 
regional governments, although $16 million in bonds were provided by the City of 
Atlanta and Fulton County in 1985. and a capital gift of $2.5 million was granted by the 
state in 1995. We are pro-business, and therefore a part of mainstream American life. 
A corporate fund-raising campaign raised neariy $1 million this year. Privatization 
has wor1<ed well for many of America's best zoos and aquariums. 

I offer this background to demonstrate that a corporate orientation is not 
Incompatible with the protection of wildlife and wildlife ecosystems. Our visitors and 
our corporate donors consistently support our conservation programs and values. 
Indeed, it is major reason for giving. They are partners in our continuing efforts to 
educate our community about the importance of biodiversity and the permanance of 
extinction. We work to ensure that our children and grandchildren will be able to 
witness eagles, whales, gorillas, elephants, treefrogs and other living creatures in a 
state of nature. We cannot be satisfied to preserve a few specimens in our zoos; we 
are obligated to protect healthy populations within their range countries. It would be a 
monumental tragedy if zoos and aquariums were to become the last refuge for 
endangered species, and we cannot let this happen. Zoo animals should be 
regarded as ambassadors for their wild kin. We are driven to save them for their own 
sake, but we do it also because our community demands it. 

It has been argued recently that we can relax our standards of protection 
because many spedes now can be propagated in captive settings. Zoo and 
aquarium professionals are experts on captive propagation. It is a helpful strategy, 
but captive breeding is not a panacea for the protection of endangered species. It is 
certainly true that zoos have mightily contributed to saving the American bison, and the 
California Condor, to name a few. but many other species have proved far more 
difficult to breed in the zoo. Moreover, the 1 70 accredited zoos and aquariums in 



151 



3 

America do not have sufficient space or financial resources to manage multitudes of 
endangered wildlife. The critical list is simply too long, and our techology is too 
primitive. 

We also recognize that reintroduction of captive-bred wildlife has proved far 
more challenging than we expected, and it may be generations before habitat can be 
sufficiently rehabilitated to accept the offspring of "rescued wildlife." We should not 
make our stand in zoos; instead our first priority must be the preservation of wildlife 
ecosystems. No zoo can protect and nurture mountain gorillas as effectively as the 
Pare des Volcans in Rwanda In this part of the world turmoil surrounds this national 
park, threatening its survival and the creatures within. But it is precisely within this 
vulnerable ecosystem that our commitment to protection must be confirmed. There 
are only 650 mountain gorillas left in the entire world. None of them reside in captivity. 
Although it cannot be our first conservation priority, we will continue to improve our 
technology, and do our best to breed rare species in our zoos and aquariums. 

In operating zoos and aquariums in this country, we have learned that the 
public wants to live in a "natural world, " a world abundant in a diversity of wildlife and 
the ecosystems that support it. We have learned this by studying our customers, the 
120 million Americans who visit zoos and aquariums annually. It is the mission of 
zoos and aquariums to contribute to public education, conservation, science and 
recreation. As zoo and aquarium professionals we strongly agree with the preamble 
of the Endangered Species Act which recognizes that endangered wildlife and plants 
are of "esthetic, ecological, educational, historical, recreational, and scientific value to 
the Nation and its people." 

The esteemed conservation biologist E.O Wilson has classified our natural 
resources as "biological wealth." His words are compelling: 

"Native species are a part of our heritage. They are venerable 
almost beyond imagining, present on this land thousands to 
millions of years before even the first native American arrived. 



152 



The average life span of a spedes. and its descendents 
before . . . humanity was one million to 
ten million years. Each species of animal, plant, and 
microorganism is a masterpiece, assembled by vast 
numbers of genetic mutations tested by natural selection 
and fitted to a particular niche in the environment. Its genes 
are a library of priceless genetic and ecological information, 
available to us at no greater price than the effort to keep 
the spedes alive.* 

As we contemplate reauthorization of the Endangered Species Act. it may be 
useful to consider the field experiences of Teddy Roosevelt, one of America's greatest 
conservatists. In his acdaimed biography Edmund Moms (1979) wrote: 

"For the first time he realized the true plight of the native American 
quadrupeds, fleeing ever westward, in ever smaller numbers, from men 
like himself. . . by 1887 the ravages . . . were plain to see. . . 
Roosevelt was now in his twenty-ninth year, and the father of a 
small son; if only for young Ted's sake, he must do something 
to preserve the great game animals from extinction." 

Fortunately, Roosevelt was a man of action. His legislative record at the state 
and national level is a monument to his lifelong commitment toconservation. Clearly, 
endangerment is not a new issue. In fact we have already lost an estimated 1 .5 
percent of the estimated 100,000 recognized species of American wildlife since the 
European colonization. Some 22 per cent are dassified as *on the brink of 
extinction'. There is no disagreement among the world's sdentists that the pace of 
spedes extinction is accelerating. 

The protection of wildlife is never easy, but 1 believe that we can develop 
•win/win" conservation strategies that will work for wildlife and for people. If we tinker 
with the Endangered Spedes Act we may be able to improve it. but we must be careful 



153 



not to render it ineffective at a time when the pressure on wildlife resources is greater 
than ever before. Responsible republicans and democrats have offered constructive 
critidsm of the Act as it is cun-ently constituted. We can build on this if we also consult 
our most trusted experts in wildlife biology and public policy. We should be careful not 
to underestimate the risks of ignoring environmental problems. As Rodger Schlickeisen 
(1995) recently observed: 

'It is a rare politician who does not recognize and play to the 
public's need to believe that America's combination of abundant 
resources, technological ability, and entrepreneurial spirit can 
solve all environmental problems before they inflict serious penalties." 

In the zoo world, we have studiously avoided 'doomsday" educational themes, 
and we should continue our efforts to objectively represent the environmental 
challenges which surround us. Sadly, the dabate on the Endangered Species Act has 
been characterized by acrimony and mistrust on both sides. Perhaps we need a new 
scientific agency to examine and evaluate environmental issues. A National Institute 
for the Environment, funded from both public and private sources, has been introduced 
jn Congress. The idea is timely and worthy of careful consideration. 

There is broad agreement that the Endangered Species Act must be based on 
sound science, and that it must be flexible. As Speaker Gingrich has suggested, the 
act will function better if it is incentive driven and not punitive. In the American 
Southeast, the Georgia Pacific Company has engaged in logging while protecting the 
habitat of endangered woodpeckers, demonstrating that industry and govemment can 
successfully negotiate policies that will work for wildlife and people. Surely we are 
capable of making the Endangered Species Act workable throughout the nation. 

The Endangered Species Act has come to symbolize America's collective 
commitment to wildlife conservation. We must further recognize that our nation is 
widely regarded as a leader in global conservation. If our courage fails us, it will 
surely affect the morale of our conservation partners in the developing worid. Like a 



154 



series of dominoes, wildlife protection could be toppled elsewhere. In a challenging 
world economy, our problems cannot be resolved at the expense of our treasured 
ecosystems. Indeed, if we do so, we are squandering biological wealth for transient, 
short term gains. The esteemed biochemist Thomas Eisner (1994) reminds us that 
"chemical prospecting" will continue to yield new medicines only if our sources are 
sustainable: 

"What beclouds chemical prospecting these days is the fact 
that species are disappearing. Environmental destruction is 
proceeding worldwide at an ever-increasing rate, with the result 
that whole habitats, with much of their contained biotic wealth, 
are being obliterated. Species are being lost faster than they 
are being examined chemically'. 

In our "World Zoo Conservation Strategy," published by the World Zoo 
Organization in 1993. we have agreed that it is the task of zoos to heighten public and 
political awareness about the interdependence of life (cf. Maple. 1993).- Our 
collections of living animals will be used hereafter to tell the whole conservation story. 
Zoos and aquariums are painfully aware of the fragile state of the earth's ecosystems. 
We have dedicated our institutions to protecting them. 

Like all good investments, it is advisable to think about conservation in the long 
term. For too many years, we have ignored an expanding habitat deficit. We are 
expending too much, and saving too little. If we should bankrupt our natural 
resources, our heirs will never forgive us. Extinction, after all, is forever. 



References 

Eisner, T. Chemical Prospecting. A Global Imperative. Proceedings of the 
American Philosophical Society. 1994. Vol. 138. No. 3. pp. 385-392. 
Maple, T. 1993. Zoo Man. Atlanta, Longstreet Press. 



155 

7 
Morris, E. 1979. The Rise ofTheodore Roosevelt. New York, Ballentine. 

Schlickeisen, R. Let's Not Ignorantly Debate the Endangered Species Act. The 
Christian Science Monitor, March 10, 1995. 

Wilson, E.O. America's Biological Wealth. Unpublished essay. 



156 

Statement of Nicholas Wheeler, Ph.D. 

Senior Scientist, Taxol® Program 

Weyerhaeuser Company 

Submitted to the Record of 
The U.S. House of Representatives 

Natural Resources Committee 
Endangered Species Act Task Force 

May 25, 1995 



Introduction 

Mr. Chairman and members of the task force, Weyerhaeuser 
Company appreciates the opportunity to provide comments on the 
Endangered Species Act (ESA) to the House Natural Resources 
Committee's Endangered Species Act Task Force, specifically 
about our experience in growing yews for Taxol production. 

I would like to begin my comments by providing a brief summary 
of our company. Weyerhaeuser is an international forest products 
company whose principal businesses are growing and harvesting 
trees, and manufacturing, distributing and selhng forest products. 

Weyerhaeuser owns and manages approximately 5.6 million acres 
of timberland in the United States (2.8 million acres in the Pacific 
Northwest and 2.8 million acres in the South). 

We have been managing forestlands since 1900 and currently 
support the largest private silvicultural and environmental 
forestry research staff in the world. 

Weyerhaeuser is committed to continuously improving our 
performance as responsible stewards of the environmental quality 
and economic value of the forests we manage. 

While our forests are managed for the production of wood, our goal 
is to protect, maintain or enhance other important environmental 
values, such as plant genetic resources, soil productivity, water 



157 



quality, fish and wildlife habitat, and other unique areas and 
environmental values. 



Weyerhaeuser and the ESA 

On April 24th, Weyerhaeuser submitted testimony to this Task 
Force on the Endangered Species Act. We said that based on our 
years of research in wildlife and forestry, and our recent 
experiences with the Habitat Conservation Plan (HCP) process, we 
believe that the ESA can be improved to the benefit of both wildlife 
and landowners. Specific improvements include: 

• Making the HCP process more user-friendly by providing '• 
certainty to landowners and reducing the time and cost 
necessary to complete documentation. 

• Providing landowners the option of moving away from the 
current species-by-species HCP process to a habitat-based 
approach for multiple species. 

• Streamlining the consultation process to eliminate unnecessary 
duplication. 

• Clarify the responsibility of private landowners with respect to 
"take." 

Our testimony today focuses on how we applied years of expertise 
derived from our forestry research to help solve a human health 
problem. Our efforts in studying and growing yew trees for Taxol 
production has reinforced our belief that private landowners be 
allowed the flexibility to apply a variety of management 
techniques. 



Background 

Taxol (paclitaxel) is considered by the National Cancer Institute 
(NCI) to be one of the most important anti-cancer drugs to be 
developed in the past 10-15 years. The molecule paclitaxel belongs 



92-551 - 95 



158 



to a group of closely related chemicals called taxanes, extracted 
from the bark and other plant tissues of yew trees (Taxus species). 
Taxol, the drug formulation of paclitaxel, has been approved by the 
U.S. Food and Drug Administration (FDA) for the treatment of 
patients with advanced ovarian and metastatic breast cancers. 
Taxol is being evaluated for the treatment of many other cancer 
types and clinical results are promising for several, including lung, 
head and neck cancers. 

Taxol was discovered in the early 1960's during the initial plant 
surveys conducted by the Natural Products Branch of the N.CI. Of 
35,000 plant extracts screened in that survey, Taxol is the only 
anti-cancer agent that subsequently came to market. 

Due in part to the initial difficulty of obtaining, extracting and 
purifying paclitaxel, development of the drug was impeded for 
several years. Interest in development was rekindled in 1979 
when it was discovered the compound had a unique mode of action 
in arresting cell division. 

Clinical trials were initiated in 1983 and remain on-going today for 
a number of tumor types. The limited supply of paclitaxel 
adversely affected the speed at which clinical trials could proceed. 
The harvest of bark from the Pacific yew lagged behind 
expectations and needs during the early years of clinical 
evaluations. 

In 1991, following a competitive bidding process, Bristol-Myers 
Squibb was awarded a Cooperative Research and Development 
Agreement (CRADA) from the NCI to further develop and bring 
Taxol to market. In late December, 1992, Taxol was approved by 
the U.S. FDA for treatment of patients with ovarian cancer whose 
first-line or subsequent chemotherapy had failed, and in early 1994 
Taxol was approved for use in the treatment of metastatic breast 
cancer. 

Prior to December, 1994, the bark of the Pacific yew, a forest tree 
species native to the U.S. Pacific Northwest and British Columbia, 
was the only approved source of Taxol for clinical trials or cancer 
therapy. Because of its limited occurrence and slow growth rates, 



159 



much concern was expressed over the environmental impacts 
associated with its harvest and as an adequate source for the long- 
term. 

Harvesting requires stripping the bark from yew trees felled either 
for the specific purpose of Taxol production, or as a bi-product of 
large-scale harvests of the primary timber species, such as 
Douglas-fir, western hemlock and western red cedar. While the 
Pacific yew is not currently an endangered species, continued 
large-scale harvests of bark could conceivably reach the limits of 
the resource and have a negative impact on the environment. 
Consequently, one of the requirements of Bristol-Myers Squibb as 
stipulated in the CRADA was to identify and develop alternative 
sources of paclitaxel. '* 

Several possible alternative sources, including foliage from other 
wild Taxus species, biomass from cultivated sources, semi- 
synthesis, cell culture and/or total synthesis have been identified 
and are receiving considerable attention. Of these, semi-synthesis 
and biomass from cultivated sources appear most promising as 
cost-effective alternatives. Semi-synthesis requires taxane 
precursors derived from Taxus plants, whether from cultivated or 
wild sources. 

Even though several economic alternatives to the harvest of Pacific 
yew exist, it is anticipated by some that there will be a continuing 
demand for the bark of the Pacific yew by organizations seeking to 
market generic Taxol products. 



Weverhaeuser's Taxol Program and Goals 

Of the supply alternatives cited above, Weyerhaeuser has focused 
it's attention on nursery cultivation, one of the Weyerhaeuser's 
core businesses and areas of expertise. The goal of our Taxol 
program is to provide, through intensive cultivation of Taxus 
biomass, 1) a long term, reliable, economic supply of paclitaxel; 
and 2) other desired taxane precursors for semi-synthetic 
production of Taxol. 



160 



Weyerhaeuser's Taxol Program began in 1987 when it was 
contacted by NCI's Natural Products Branch as a prospective 
contractor to supply Pacific yew bark., Although we own and 
manage 2.8 million acres of private timberland in the Pacific 
Northwest, Weyerhaeuser has a relatively few Pacific yew trees on 
this land. 

Recognizing the limited availability of yews throughout the region, 
and the potential negative impact of long-term harvest on the 
species, Weyerhaeuser proposed intensive cultivation as a supply 
alternative. It was our belief that cultivation of yews in a farest 
nursery setting would provide for a more reliable, long-term and 
environmentally sound solution to the supply issue. 

To achieve this, Weyerhaeuser established a Pacific yew 
population / genetics study in 1987-88. This was followed by the 
establishment of an aggressive research and production program. 
This program was supported by early research results from the 
genetics study, from our extensive experience within the company 
in tree improvement, plant physiology and propagation research, 
and from our large-scale forest tree nursery operations. Our 
experience in these areas has allowed us to rapidly develop a 
comprehensive cultivation program for the production of yew trees 
for Taxol 

Since 1991, Weyerhaeuser has had an exclusive Taxus biomass 
supply relationship with Bristol-Myers Squibb. However, recent 
changes in that relationship retains Bristol-Myers Squibb as a 
customer and allows Weyerhaeuser to grow taxane-containing 
biomass for other customers. These developing changes provide 
both Weyerhaeuser and Bristol-Myers Squibb new opportunities in 
improving their strategic directions. 

Weyerhaeuser's program is focused on both research and 
production activities: 

1. Research Activities 

• identify the best genetic material (species or varieties) 
to use in a domestic cultivation system 



161 



• determine paclitaxel (taxane) content as a function of 
the various plant tissues for different varieties (bark, 
needles, etc.) 

• determine the effects of harvest time and cultural 
practices on yield 

• assist in developing extraction technologies for various 
plant tissues 

• establish long-term genetic improvement efforts 

2. Production Activities 

• determine how to grow different genetic sources of yew 
quickly 

• determine the best propagation practices (i.e., 
vegetative, seedling, etc.) "* 

• evaluate various cultivation alternatives (nurseries, 
hedges, plantations, etc.) 

• determine the economics of domestic cultivation 

Following the success of this program, Weyerhaeuser looks 
forward to additional opportunities where our technology and 
resource base can be applied in the production of other medicinal, 
pharmaceutical or other natural-product derived compounds or 
products. 



Summary 

Since the start of our yew-Taxol program, Weyerhaeuser has 
grown more than 12 million yew trees at five forest tree nurseries 
in the Pacific Northwest. 

In the search for alternative sources of Taxol, we believe that 
intensive cultivation of selected Taxus genotypes offers the best 
long-term solution. We believe that with the strong integration of 
research and production, and based on the positive results 
experienced to date, Weyerhaeuser can achieve its goals of 1) 
providing a long-term reliable and economic source of paclitaxel, or 
other taxanes of choice, 2) contributing significantly to the 
expected increasing demands for Taxol throughout the decade and 
beyond, and 3) contributing to the conservation of world-wide 



162 



natural Taxus populations through the use of a renewable, 
sustainable, cultivated Taxus resource, managed under strict 
operational controls. 

Weyerhaeuser's success with cultivating yew and developing 
alternative ways to produce raw material for Taxol is but one 
example of how landowners can respond to society's needs. We 
have been able to lend our considerable expertise gained from 
decades of research and management of our private forestlands to 
this important effort. For the same reasons, the company has been 
able to develop and implement solutions to concerns over wildlife 
habitat. And the key to being able to apply these types of solutions 
has been the ability to be flexible in our management of private 
forestlands and to be responsive to changes in markets and '* 
external conditions. 



163 



TESTIMONY BEFORE THE NATURAL RESOURCES COMMITTEE OF 
THE U. S. HOUSE OF REPRESENTATIVES 

Thursday, May 25, 1995 



Dr. David G. Cameron 
2004 Centennial Drive 
Great Falls, MT 59404 

(406) 453-5378 



164 



SUBJECT: Written submission by Dr. David Cameron to 
accompany oral testimony at the hearing of the Natural Resources 
Committee of the U. S. House of Representatives to be held 
Thursday, May 25, 1995. 

COMMITTEE MEMBERS AND VISITORS: 

I speak today wearing two hats. I am a recently retired 
professor of biology and genetics at Montana State University 
with degrees from Princeton and Stanford Universities. I hold a 
lifelong interest in wildlife genetics and the hereditary 
consequences of adaptation and speciation. I am also a third 
generation Montana livestockman having managed for twenty years a 
large family cattle and sheep operation. These two hats, that of 
the theoretical/idealistic biologist and the market-driven 
rancher have made me slightly suspect wherever I go. 

As a professional biologist, I, along with my students and 
colleagues, have published studies on populations of diverse taxa 
in natural habitats in the West — usually at the request of 
Federal or State agencies. Often their concern has been what 
their obligations were under the mandates of the Endangered 
Species Act. We tried to provide a scientific basis for their 
decision making. 

My m.ain purpose in coming here is not to dwell on the 
scientific problems of the ESA, but to relate my own frustrating 
experience with the Act as a rancher attempting to perform what 
would normally be considered a good deed. The tradition in my 
family has been to give wildlife a break wherever possible. My 
father reintroduced pronghorn antelope to our region four decades 



165 



ago, and our region is renown for its herds of elk and deer, its 
mountain lions, coyotes, bears and soon, God help us, wolves. 
Few complain. 

HOW THE CURRENT ESA INTERFERES WITH GOOD DEEDS: 
Hoping to continue in the family tradition of ecological 
reconstructive activity, I implored upon my colleague. Dr. Calvin 
Kaya, a fish biologist with special interest in the Montana 
grayling, to examine the tributaries of our trout stream for 
sites suitable for the reintroduction of grayling — a native 
species which for some reason has disappeared from much of its 
former habitat, including our ranch. A suitable site was found, 
and plans were made to do what was deemed necessary. Volunteer 
help was available, and we were about to proceed when word 
arrived that the Federal Wildlife Service was seriously 
considering listing the Montana grayling as an endangered 
species. At this point people knowledgeable about the heavy- 
handed approach of the Feds counseled me to forget the 
experiment. We might lose the right to graze our pastures. My 
recollections of the horror stories abundant in stockmen's 
journals about the hazards of hosting an endangered species 
didn't help , and I sadly bowed out. It seemed a good deed would 
probably be punished, and life had sufficient complications 
without Federal Agents giving orders. 

How many times has my story been repeated? How often has 
the ESA impeded biological restoration? I think more often than 
we want to believe. Reasonable property owners are frightened 
and angry at you, the government, for managing with brick bats. 



166 



Why does the hosting of a rare and troubled creature have to be a 
threat to their livelihood rather than a source of pride and 
pleasure? IT LOESN'T. It is clearly unfair to make a few 
individuals both the scapegoats and the bearers of stress because 
of forces beyond their control and perpetrated by society at 
large. We must form partnerships between groups who now fight 
for CONTROL rather than results. 

Habitats vary continuously through space and time. Their 
management is a constant challenge to those, the local private 
and public managers, who know them best. 

WHAT CAN WE DO? 

1. We must seek ways to enlist this local knowledge and 
form the management groups necessary to find common ground and 
innovative solutions. The next ESA must be an ENABLING act 
opening doors of opportunity and marshaling latent goodwill that 
was stifled by the preceding act. The more local the solution, 
the more likely it will work — you must believe that! 

2. We cannot save every variety of every living thing. You 
must allow the exercise of triage and spend money effectively. 
Lavish expenditures on dubious acts turns off otherwise 
sympathetic citizens. 

3. We must put money into carrots not sticks. People 
respond to incentives. For instance, ill-conceived tax 
structures drive rational people to do socially undesirable acts. 

4. You must convincingly remove from the new Act the 
perception that there is an agenda beyond maintaining a healthful 



167 



environment. The apparent joy with which Federal Agents have 
intruded into private lives of ranchers suggests to many a 
political not a biological agenda. 

5. PRACTICE WHAT YOU PREACH: One thing you can do is to 
start managing your own showplaces in an appropriate way. 
Yellowstone Park is a grazing disaster zone recognized as such by 
professional range managers and ranchers. Biological diversity 
seems to have a very low priority in the Department of Interior 
as historical photos reveal the loss of willows, aspen, 
cottonwoods, beaver, and assoicated biota due to elk and bison 
having been allowed to ravage the park while cultivating 
Brucellosis. A good example of ecosystem management is 
demonstrated in South Africa's Kruger Park, and if applied in 
Yellowstone, would go a long way in selling a conservation 
program to the West. 

As a professional biologist, I am alaxmed that political 
correctness has superseded science in advice and council going to 
the Hill. When the governing board of the Society of 
Conservation Biology recommended to Interior that Conservation 
Reserve Lands (CRP) should never be grazed, I realized the depths 
of biowhoring taking place. A recommendation of a single 
management plan for over 10 million acres of land is flawed — 
whatever it may be. 

I wish the Committee success in its deliberations and offer 
you any help I can give. Thank you for your attention. 



168 



SAVING ENDANGERED SPECIES WITH HIGH-YIELD FARMS AND 
FORESTS 

by Dennis T. Averj' 
Hudson Institute 

Testimony before the Endangered Species Task Force of the US House 
Committee on Resources, Washington, DC, May 25, 1995 

Thank you for the opportunity to highlight the importance of using high-yield agriculture, 
high-yield forestry and freer trade in natural resource products to save endangered species 
by the thousands, in the US. and around the world 

My name is Dennis T. Avery. I am a senior fellow and Director of Global Food Issues for 
the Hudson Institute of Indianapolis. Prior to joining Hudson, I spent nine years as the 
senior agricultural analyst in the U.S. Department of State In that career position, I was 
responsible for assessing the foreign policy implications of food, agriculture and natural 
resource policies worldwide. I have also served as a policy analyst for the U S 
Department of Agriculture and for the National Advisory Commission on Food and Fiber. 

I have written two books on global food and agriculture: 

~ Global Food Progress, published in 1991, is an overview of the research, technologies 
and government policies which have enabled us to feed twice as many people since 1951, 
feed them better diets, and do it from essentially the same amount of land. 

~ Saving the Planet With Pesticides and Plastic: The Environmental Triumph of 
High-Yield Farming, has just been published, and I have furnished copies to the 
committee members. It details the contributions which high-yield fanning and forestry 
have made and should make in preserving millions of square miles of wildlife habitat, 
preserving the species living on that habitat, saving billions of tons of soil from erosion, 
and protecting billions of gallons of water — all while reducing human health risks. The 
book also focuses on the danger of trapping even more of our natural resources in the 
deadly tragedy of "commons ownership." 

This global resource overview is offered in the spirit of the environmental slogan to "think 
globally and act locally." I hope it will make a constructive contribution to carrying out 
the committee's vital tasks. 



169 



Let me first say that this country and the world owe a major debt of gratitude to the 
environmental movement which has so sharply increased our sensitivity to the natural 
world and the need to preserve our natural resources I share their goal of preserving the 
world's wildlife and wildiands I share their hope that we now have the knowledge and 
the will to preserve all of the wildlife species on the planet, even as the world's human 
population continues to increase and become more affluent 

However, I bring a warning to this committee and to the environmental movement. We 
cannot save the world's endangered wild species without high-yield farming Nor without 
high-yield forestry Nor without liberalized opportunities to exchange the products of 
these natural resources more freely among regions and countries, so that we can use the 
world's best-suited land and best production systems to minimize food and forestry's land 
requirements. That is the only way we will continue to have habitat for the wildlife. 

We must also recognize that the United States bears a special responsibility in these areas 
both because of our unique endowment with land and climate, and because of our world 
leadership in research and technology The world can probably not save a high proportion 
of its wildlife habitat without America playing a fiilly supportive role in that effort. 

We must face the fact that the world's human population will nearly double before it 
restabilizes. We must produce food for these people, otherwise, they will hunt down 
virtually every wild creature for the stewpot, and then plow down the wildiands for low- 
yielding crops. We cannot hire enough game wardens to save the wildlife if the people are 
truly hungry. 

In addition, that larger world population is rapidly and broadly gaining affluence. Higher 
incomes mean smaller families, and thus affluence is good for the environment ~ but it 
also means farmers must supply more resource-costly foods such as meat, milk and eggs. 
It means more demand for cotton clothing in the tropics. We must be able to produce 
three times as much food and fiber fi-om our farms by 2050. At the same times, we must 
also radically increase our output of forest products. And we must do all of this wdthout 
sacrificing wildlife. 

If we cannot achieve food and forest product increases through higher yields and fi-eer 
trade, then the demand for these products will be satisfied by invading wildiands. Most of 
the wildiands invaded will be in the tropics, with their dense biodiversity. 

Fortunately, we have developed the knowledge base to avoid such losses. The U.S. -led 
efforts to develop such technologies as plant breeding, chemical fertilizers, pesticides and 
irrigation are becoming even more critically important. Moreover, our traditional research 
efforts are now being amplified by biotechnology. Because of biotechnology, we can look 
forward soon to rice that resists the tungro virus and thus has higher yields. We will have 
such new developments as com and cotton that carry their own built-in natural pesticide, 
also delivering higher yields. Genetically-engineered pork growth hormone will give us 
hogs with half as much fat, produced from 25 percent less feed grain ~ and better feed 



170 



conversion. Cloning the best trees can give us forest plantations with ten or 20 times the 
yield of a natural forest. Trade can often increase the efficiency of our natural resource 
use by three fold or more. 

However, our policy framework is failing to support the higli-yield approach. 

~ The Federal regulatory process too often seems dedicated to the "ideal" of low-yield 
organic agriculture. The certainty of massive wildlife habitat losses is ignored while we 
"protect" the public from unproven and unlikely heahh "risks " 

~ The Federal farm programs divert urgently-needed and capable cropland from 
production in America, which triggers the plow-down of land in other countries with far 
less productive capability and far more species diversity 

~ Too much of our agricultural research momentum is being diverted into so-called 
"sustainable" farming systems that are unlikely to produce enough yield to protect the 
existing wildlife habitat from invasion 

~ Our forestry efforts seem determined to ignore the world's growing demand for forest 
products, and the fact that America has more than its share of fast-growing trees These 
trees are not antique rocking chairs which can be urethaned and put beside our fireplaces 
as trophies. They are living organisms which will either be harvested or die. 

~ Locking up fast-growing forests in the Pacific Northwest for the spotted owl will do 
nothing to lower the world's demand for forest products; it merely shifts the focus of that 
demand to species-rich tropical forests or slow-growing Siberian trees that may not be 
replanted. 

~ Too much of Americans' concern about biodiversity is poured into "saving" sub-species 
and populations of non-threatened species in America, while the impacts of our farm and 
forestry policies on habitat and species destruction overseas is ignored. 

~ With the best environmental intentions, we have attempted to impose command-and- 
control environmental regulation on agriculture, the most diverse, site-specific and 
decentralized industry of all. As an excuse for this regulation, we have blackened the 
environmental reputation of farmers, the very people who pioneered conservation and on 
whom we must finally and inevitably depend for the preservation of many species In 
some cases, conservation incentives have become so perverse that people have been 
thrown in jail for creating v^dldlife habitat. Landowners have lost the use of their lands 
because they attracted wildlife. Forest owners are now cutting trees quickly, before they 
attract endangered species and lose the right to cut timber at all. 

Mankind is at the most critical moment in environmental history. What we do as people 
and societies in the next two decades will determine whether we bequeath a more 
populous but sustainable worid to future generations - or bring on the very apocalypse of 



171 



famine and wildlife destmction that Greenpeace and Earth First! have publicly predicted 
America's policies need to lead the way 

The most critical environmental decision we will make is how and where we grow our 
food Because of America's size and leadership position, our food and forestry decisions 
will have a huge impact on how humanity uses two-thirds of the earth's land surface — and 
thus the availability of habitat for the world's wild species 

The stakes are huge I estimate that high-yield farming is already preserving 10 million 
square miles of wildlife habitat from being plowed down for food. That's equal to the 
land area of North America. By the year 2050, the difference could well be 20 million 
square miles of wildlands 

So far, we are making the wrong decisions, for the wrong reasons, based on the wrong 
information. On agriculture, forestry and wildlife, we are too often "Thinking locally and 
acting illogically" 

Unless we take a new approach to conservation, keyed to 1 ) encouraging high yield crops 
and forests, 2) environmental incentives for private resource owners, and 3) fi-eer trade in 
natural resource products, the world will lose huge tracts of wildlife habitat which should 
not be lost. Unless the United States takes the leadership in this change of strategy, it is 
not likely to happen. Unless America uses its own cropland and forestland more 
effectively, we may be directly responsible for the destruction of wildlife species by the 
thousands. Some of these wall be in our own country, but by far the majority would be 
lost from the tropical forests that would be cut and plowed to compensate for the 
frivolous waste of key American natural resources. 

It is not America's Endangered Species Act which is truly protecting the wild genes in the 
rain forests, and preserving our opportunities to find cures for childhood leukemia and 
other natural medicines. The world's wild genes have actually being preserved by the 
Green Revolution and high-yield pulp plantations that have prevented the need for 
expansion of crops into the tropical forests. 

Thanks to high-yield farming, the First World has farmed less land. Cropland is being 
diverted rather than cleared. 

In Chile, where crop yields have been rising, no forests have been cleared for food. In 
nearby Ecuador, where the crop yields are stagnant and there is no money for food 
imports, they are expanding the cropland at 2 percent per year ~ by clearing the forests. 
The damage to the gene pool from cropland expansion in that one Latin American 
country dwarfs anything that could possible happen under the ESA. 

The clearing of tropical forests in countries such a Brazil and Indonesia has been 
happening because of food shortages, but because the stagnant and graft-ridden 
economies in those countries have not generated enough off-farm jobs. Someday I hope 



172 



to hear envirionimental groups criticize Third World governments for saddling their 
people with too many government jobs and too little opportunity. 

Only in Africa, where high-yield farming is not yet being used, has the world lost large 
amounts of wildlands and wild genes in recent years The African problems have included 
statist policies, government subsidies to urban consumers and too little investment in 
agriculture and forestry research. 

THERE IS NO UPWARD POPULATION SPIRAL 

Recent dramatic reductions in world birth rates are beginning to ease our irrational fear 
that the human population would simply keep growing itself to death There has never 
been an affluent country with a continuing high birth rate, and the GATT is now helping 
virtually the whole Third World to gain affluence As a result, its population growth rate 
is declining radically. Births per woman have fallen from about 6.5 in the 1960s to about 
3.2 today; since stability is 2. 1 births per woman, the Third World has already come 
three-fourths of the way to stability. The First World is already at about 1 7 births per 
woman, implying an long-term decline in world population after a peak of 8-9 billion 
people about 2040 

(It is important to note that the countries which have brought down their birth rates the 
most have also made the most progress in raising their yields of crops.) 

This means American international policy concerns are probably now too heavily weighted 
toward population "management" and give too little support for resource preservation 
strategies. 

HABITAT IS THE KEY 

The earth's cities currently occupy only about 1 .4 percent of the planet's land surface. By 
the year 2050, if we have as many as 10 billion people, the vast majority will live in cities 
that will occupy less than 4 percent of the land. If these people treat their sewage and 
invest in clean energy, what threat do they represent to wildlife? Not much — unless it 
takes too much land to grow their food and forest products. 

High yields, however, have proven they can take the environmental sting out of population 
growth and affluence. We are already feeding twice as many people today as we fed in 
1950. We're feeding them better diets, with lots more high-quality protein Yet the world 
is still cropping virtually the same 5.8 million square miles of land that it used for crops 45 
years ago. 

If the world's farmers today got the yields they achieved in 1950, the world would need 
nearly three times as much cropland to produce today's food supply A total of 15-16 
million square miles is a reasonable estimate, given the poorer soils and steeper slopes that 



173 



would have to be fanned. That would mean the biggest loss of wildlife since the Age of 
the Dinosaurs ended 

Forestry expert Roger Sedjo of Resources for the Future estimates that high-yield tree 
plantations could produce the forest products for 10 billion affluent people from less than 
5 percent of the earth's current forest area That would free the rest of the world's forests 
from logging pressures, though we would still need to make forest management choices 
(between logging and managed fire) to prevent big forest fires 

We must also give greater consideration than the U.S. environmental movement has yet 
conceded to the global forest impact of not han'esting America's fast-growing trees. 

Naturalists who fear losing wildlife species are worried first and foremost about losing 
habitat Without the higher yields, we might indeed lose millions of wild species over the 
next 50 years With continued investments in the technology of high-yield farming and 
forestry, we might not have to lose any 

THE WORLD'S BEST LAND HAS THE FEWEST WILD SPECIES 

One of the most important factors in saving species is the convenient fact that the land 
most important to humans is the land least important to wildlife biodiversity. The best 
lands tend to support large and vigorous populations of a few species It is the poorest 
lands ~ such as the tropical forests and the vertically-challenging mountains - which 
harbor the richest genetic reservoirs. 

The huge, rich croplands of central North America probably never harbored more than a 
few thousand species of flora and fauna. We can apparently find that many species in a 
few square miles of tropical rain forest. Even within a tropical forest, the best soil types 
are likely to have only one-tenth the number of tree species per acre as the poor soil types. 

The number of wild species per square mile is very low in terrible soils (such as the white 
sand deserts and acid-soil savannahs). Species diversity is at its peak on the almost- 
terrible soils such as rain forests, mountain slopes, swamps, and other lands that farmers 
avoid. By the time we get to lands capable of high crop yields, the species diversity is 
quite low. 

Dr. Michael Huston, the well-known ecologist from the Oak Ridge National Research 
Laboratory says that the world's wildlife diversity is strongly tied to soil resources ~ and 
that North America bears a special responsibility for defending the world's wildlife species 
because of its rich soil endowments. ' 

Dr. Huston emphasizes that the world's soil map shows relatively few areas with broad 
expanses of high-quality soils (appropriately moderate acidity, high cation exchange rates 



Dr. Michael Huston, "The Environmental Need for Free Farm Trade," presented to the Hudson Institute 
1995 Farm Policy Conference, Washington, D.C., Feb. 7, 1995. 



174 



temperate climates and adequate rainfall) The Sahara Desert and the deserts of Central 
Asia have some good soils, but no moisture 

The tropical regions, which harbor so many species, are inherently poor for crop 
production. High temperatures bum up organic matter quickly from the soils Heavy 
rains leach out plant nutrients and wash away vulnerable soils. 

The key food production regions, based on inherent soil quality and low species diversity 
are North America, the Ukraine and parts of Asia, especially China Argentina has the 
same advantages in the southern Hemisphere, but its land area is far smaller 

ENDANGERING SPECIES WITH FARM CHEMICALS? 

To my knowledge, the only wild species we have so far sacrificed to high-yield farming 
was the passenger pigeon. As the rich hardwood forests of Indiana and Ohio were 
cleared for crops in the 19th century, the passenger pigeon's habitat and food supply 
disappeared. (However, it was market hunters who finished off the remnants of the 
passenger pigeon population; otherwise we might still have some of them to observe and 
enjoy.) 

Naturalists are not very fearfijl of farm chemicals. So far, farm chemicals have not even 
been able to cause the extinction of such pest species as the boll weevil and the malaria 
mosquito, where we were trying. 

Too many conservationists have taken fears as fact. 

~ Many readers of Rachel Carson's Silent Spring still believe that DDT killed robins. In 
fact, tests show that robins can tolerate huge doses of DDT (10,000 parts per million) 
with no ill effects. They simply excrete it. (In those days, we treated seed with mercury 
to prevent fijngal attacks; Ms. Carson's robin kills were probably due to eating mercury- 
treated seeds.) 

~ In 1975, Cornell University reported on a test in which DDT, PCBs and mercury were 
fed to birds. DDT had no effect. PCBs sharply cut the hatching rate of the eggs. 
Mercury not only cut the hatchability of the eggs, but it weakened the eggshells^ It was 
almost certainly the PCBs and mercury which threatened the raptor birds, and it was 
almost certainly the Clean Water Act of 1972 which saved them. The environmental 
movement still deserves the credit for saving birds, of course. 

~ One of the famous studies that "proved" DDT lowered the reproduction rate of mallard 
ducks had more variability among the control groups than between the controls and the 



^ Scott, et all, "Effects of PCBs, DDT and Mercury Compounds Upon Egg Production, Hatchabilitj' and 
Shell Quality in Chickens and Japanese Quail," Poultry Science, Vol. 54, 1975, pp. 350-368. 



175 



test group! In fact, the data seem to "prove" that moderate doses of DDT increased ihe 
number of live ducklings per hen/* 

~ Another study "proved" that DDT weakened eggshells, but the calcium in the birds' 
diets was deliberately held below the levels needed for eggshell formation.'' 

I don't raise the questions about DDT because I want to bring DDT back. Today we 
don't use or need DDT or the other persistent pesticides in America. (Africa's malaria 
problem is another question.) We use compounds that target pests more narrowly, need 
far less volume, break down more quickly and are thoroughly tested to ensure both human 
and wildlife safety But the banning of DDT is still waved as the reason why we should 
hate and fear all pesticides 

Too often we have compromised good science. Too often, we have let political 
expedience get in the way of good long-term public policy DDT is a case in point. 

Thirty years after Silent Spring, we know that high-yield farming - pesticides and all ~ is 
the most sustainable and sustaining system of farming devised in 10,000 years This is due 
to both its low land requirements and its low soil erosion per ton of food produced. So far 
as medical science can tell, farm chemicals represent near-zero risks to people and wildlife, 
while delivering huge wildlife preservation benefits and huge reductions in our cancer and 
heart disease risks. 

Until and unless we can prove some of the negative impacts that have so far only been 
claimed against farm chemicals, environmentalists should be cheering effective pesticides. 
And that means proven to the point of peer-reviewed scientific consensus. It does not 
mean a quasi-scientific paper cheered on by a claque of close colleagues and published 
under a scary headline. 

My home state of Virginia recently banned a soil insecticide called Furadan 15G, which it 
regarded as the worst farm chemical threat to the state's wildlife. This granular soil 
insecticide had caused "hundreds" of documented bird deaths over a period of years when 
birds mistook the granules for seed or gravel. Fortunately we had alternative pest 
controls, and we could give up Furadan without major yield loss. But if we had to ban all 
pesticides, and accept a 50 percent cut in yields, Virginia might have to plow another 2 
million acres of wildlands to make up the production loss. How many birds live in 2 
million acres of Virginia wildlands? 

We can't prove zero wildlife risk from farm chemicals. All we can prove is near-zero and 
declining risks, offset by huge gains in habitat preserved. 



' Heath, Spann and Kreitzer, 1969, "Marked DDE Impairment of Mallard Reproduction in Controlled 
Studies," Nature, 224, pp. 47-48. (DDE is a metabolite of DDT which presumably might be found in the 
mallards' diets.) 

■* BiUnan, Harris and Fries, "DDT Induces a Decrease in Eggshell Calcium," Nature, 224, pp. 44-46. 
Cited in Claus and Bolander, Ecological Sanity, McKay Co., New York, 1977. 



176 



The EPA's current crude effort to suppress farm chemical use should be tempered with a 
far stronger appreciation of the wildlife benefits generated by higher crop and forest yields 
This isn't a matter of dollars. Nor is it a matter of protecting human health, the use of 
pesticides clearly cuts human healtii risks from cancer, heart disease and natural toxins/^ 

ORGANIC FARMING CANT SAVE THE WILDLIFE 

The bitter truth for conservationists is that low-yield farming can't save the people or the 
wildlife. Organic yields are only about half as high as the yields from America's good, 
mainstream farms 

Worse, the world has only perhaps 20 percent of the organic nitrogen needed to support 
current world food production - let alone tripling output for the future The nitrogen 
problem is huge. If all the urban sewage sludge in America were dedicated to our crop 
field (heavy metals and transport costs notwithstanding) it would make up for only 2 
percent of the chemical nitrogen fertilizer we currently apply 

The only practicable way for the world to get huge increases in organ nitrogen would be 
to grow millions of square miles of additional legume crops - sacrificing wildfire for 
clover and alfalfa. 

STOPPING SOIL EROSION 

When we double the yields on the best and safest land, we slash soil erosion per ton of 
food in half That's because we open only half as much land to wind and water If high 
yields also eliminate the need to push crops onto a steep or fragile acres, then we cut soil 
erosion by more than half 

Now, chemical weed killers are letting us stop soil erosion virtually in its tracks. Having 
already cut soil erosion per ton of food by two-thirds with high yields, American farmers 
are now using conservation tillage and no-till farming to cut erosion another 65-98 
percent, on 100 million acres of our most erosion-prone croplands. The herbicides let us 
control the weeds without the moldboard plow, the steel cultivator shank and other "bare- 
earth" farming systems. 

PROTECTING GROUNDWATER 



* Pesticides help prevent the infestation of field crops with dangerous natural toxins, both during 
production and storage. In addition, they make possible the low-cost attractive fruits and vegetables 
which are mankind's strongest protection against both cancer and heart disease. We have more than 100 
epidemiological studies which show eating five fruits and vegetables per day cuts cancer rates radically; 
we have no studies which show that the consumption of organically-grown fruits and vegetables cuts 
cancer rates more effectively 



177 



There is additional good news about high-yield farming and groundwater Data from the 
Management Evaluation Systems Areas is telling us that modem high-yield farming poses 
little threat to groundwater^ 

MESA is telling us that less than 1 percent of the herbicides applied to the soil end up in 
our groundwater. No health threats have been linked to the traces of pesticide which have 
been found in our wells. In fact, EPA has recently raised the safety rating (the reference 
dose) by seven-fold on atrazine, the most widely-found pesticide in groundwater 
Apparently, the only Americans who are consuming pesticide traces above the Acceptable 
Daily Intake in their groundwater are drinking fi-om surface springs and shallow, hand-dug 
wells 

Nor is nitrate in our groundwater a significant threat to humans. The only nitrate-related 
threat to humans ever documented is blue-baby or cyanosis America has had only one 
blue-baby death in the last dozen years, and that was due to a fertilizer spill near a 
farmstead well. 

Nitrate fi-om agriculture does still represent a problem in surface waters, for marine 
ecosystems. However, if we make fijU use of the newest and most cost-effective farming 
systems, we should be able to eliminate virtually all farm-related threat to groundwater 
supplies, and sharply reduce farming's impact on surface waters as well. 

These new nature-fiiendly farming techniques include: 

- Lx)w-till farming systems (both conservation tillage and no-till) which cut surface water 
runoff fi-om farmland by more than 90 percent. Reducing the surface water runoff not 
only cuts soil erosion but eliminates most of the ofF-field transportation of chemicals. 

- Site-specific farm management, which uses Global Positioning Satellites, intensive soil 
mapping and sampling, and tractor-mounted microprocessors. This permits the farmer to 
vary the application of seed, fertilizer and pesticides yard-by-yard across the field 
according to soil type, plant population, slope, hydrology, nearness to waterways and any 
other important factor. There is no need to put on more inputs than the crop will need, 
nor any less. 

~ Nutrient management plans that keep livestock and poultry wastes stored safely until 
the optimum moment for application, knifing-in of the manures to prevent runoff, and 
timing of manure application during the growing season for quick uptake. Such 
technologies make maximum use of the plant nutrients in the manure in the fields rather 
than permitting them to escape into surface waters. As a result, my Shenandoah Valley 



MESA is a joint efifort of the U.S. Department of Agriculture, the U.S. Geolo^cal Survey, the 
Environmental Protection Agency, and state agricultural experiment stations and the Federal-State 
Cooperative Extension Service. 



10 



178 



makes less than half as much contribution to nutrient loading in the Chesapeake Bay as 
one sewage treatment plant near Washington, DC.' 

CONSERVING WITH COWS 

Cows are not environmental villains They enable us to use the world's grasslands to 
convert biomass humans can't digest into high-quality healthful protein The grasslands 
need to be grazed, or else huge wildfires would turn them into instant carbon dioxide. 

If the grass is going to be grazed, it makes little sense to feed all of the ruminant protein to 
wolves and lions in a world that keeps threatening to clear tropical forest for meat 
production 

(With more and more high-yielding pasture grasses being developed, there should be no 
need to clear forest for pasture. The Amazon was being burned to create pasture because 
of a Brazilian government subsidy, not a beef shortage.) 

Overall, the grasslands help to meet human food requirements with little loss of 
biodiversity and very little soil erosion. 

THE ENVIRONMENTAL NEED FOR TRADE 
IN NATURAL RESOURCE PRODUCTS 

If we must triple the world's output of farm and forest products without destroying 
wildlife habitat, we will need to use the world's best-suited land as productively and 
eflficiently as possible. Unfortunately, the lands are poorly distributed to meet food and 
forest requirements from local production. 

The recent calls from some environmentalists for "resource self-sufficiency" is a misguided 
effort to ease natural resource constraints, or perhaps even to suppress population growth. 

The real key to resource sustainability is to grow the crops and the trees where they grow 
best, and exchange food and forest products for other needed goods and services. Such a 
trade strategy would permit the huge tracts of prime cropland in America and Argentina to 
meet the gigantic food gap emerging in Asia. Millions of tons of American com, wheat, 
cotton and meat should be *;xported to the densely-populated countries of Asia. 

Indonesia is already attempting to clear 1.5 million acres of tropical forest to grow low- 
yielding soybeans to feed its broiler chickens. India is stealing crop biomass from its fields 
to get an additional 2 million tons per year of dairy products, and never mind the soil 
erosion which will result in the ftiture. China is building a huge dam for power and 
irrigation that will displace 1 .2 million people from the Yangtze Valley. No less than 56 



^ Dr. Rick Halpem, "Where Have All the NuUients Gone? Intensive Livestock Fanning and Surface 
Water Quahty," 1995 Hudson Institute Farm Policy Conference, Washington, D.C. Feb. 7 , 1995. 



179 



dams are being planned for the Mekong River Delta in Southeast Asia, which will destroy 
the migratory patterns of the freshwater fish 

Must we watch the Bengal tiger and the Indian barking deer be sacrificed to national pride 
in "food self-sufficiency "^ Must we watch species-rich tropical forests be sacrificed 
because America refuses to harvest second-growth Douglas fir? 

The world indeed needs an "environmental round" of the General Agreement on Tariffs 
and Trade. Such a round should have as its highest priority a mandate to liberalize trade 
in farm and forest products Farm product trade, in particular, is constrained far more 
severely than trade in nonfarm products. Currently, the farm trade barriers are having the 
perverse effect of forcing the expansion in world's food production to be made from low- 
yielding acres in densely-populated countries; too often the food increases are actually the 
result of environmental sacrifice. Meanwhile, North America spends government money 
to divert 40-50 million acres of good cropland; Western Europe is beginning to waste 
good cropland on the same pattern; and Argentina is pasturing cattle on 75 million acres 
of the rich Pampas. 

Nor is any attempt being made to rationalize the world's forest product needs among safe, 
fast-growing wild and plantation forests. Yet this is obviously what needs to be done in 
order to harvest the fewest and safest acres, to save the fragile and slow-growing forests 
and the critical habitats with high biodiversity. We dare not sacrifice the world's overall 
preservation patterns to national near-sightedness. 

ENDING THE TRAGEDIES OF THE COMMONS 

Another global pattern is relevant here to both our national and international policies ~ the 
"tragedy of the commons." 

Iceland learned about the tragedy of the commons in the 12th century, when the eider 
ducks and other sea birds were declining because too many people took too many of the 
eggs. Iceland solved the problem be declaring that the eggs were the property of the 
person on whose land they were laid. The sea bird populations immediately began to 
recover, because every landowner wanted lots of birds nesting in their property. 

We see the same problem - and solution ~ today in Africa's elephant population. The 
elephants which do not effectively belong to anyone are being killed. They are being killed 
because their hides and tusks are valuable, but also because they trample crops, houses 
and tribespeople. In East Africa, the elephants' very survival is threatened, even though 
the governments have put the elephants under their "protection" in national parks and 
armed their game wardens with assault rifles. 

In southern Africa, however, the elephants are thriving. The difference is that in the 
southern countries, the governments have made the local villagers partners in the 
"elephant business." The local residents share in the revenues from hunting and photo 



12 



180 



safaris, and from the meat and hides Here, is it poachers who are in danger, and not 
elephants 

This is not simply a parable for Third World governments It is a key lesson in natural 
resource management. The more incentive that local resource managers have to preserve 
wildlife, the more wildlife will be preserved The more heavily we depend on police 
powers to protect widely-scattered resources, the more of them we will lose 

The environmental movement has come close to completely alienating the agricultural and 
forestry communities, when they should have embraced them as critically-important allies 
Fanners and ranchers now fear the Sierra Club and the Fish and Wildlife Service. They 
are looking for ways to avoid involvement instead of ways to protect nature Regulatory 
approaches which may have worked tolerably well in monitoring big chemical plants are 
useless in getting farmers and ranchers to look after little wild organisms in remote 
locations. 

I have a book in which a nutritionist living in New York City demands that farms be put 
where she and her fellow urban consumers can conveniently look over the fences and 
make sure that their food is being produced with appropriate environmental sensitivity 
To anyone who knows food production this is obvious nonsense, it would either force the 
depopulation of our cities or create horribly expensive roof gardens on the upper levels of 
New York's parking garages. 

Too many people are nearly as unrealistic about saving wildlife out in the wild. They 
don't want to trust the people on the ground to conserve. But in reality, there is no 
choice. 

Conservationists must have the positive cooperation of rural resource managers. The 
"ownership" of those resources must be a clear as possible, and the incentives to conserve 
and preserve must be clear and positive. 

There is no way that real and lasting conservation can be accomplished by governmental 
"seizure" of private lands, by dictating fencelines from Washington, by depriving small 
landholders of the use of their property. Such a police-state approach may give some 
environmentalists and/or government officials a temporary feeling of power but the 
conservation results on the ground will be horribly disappointing in the long term. 

Fortunately, it is not that difficult to get the cooperation of farmers, ranchers and the 
forestry industry on something they favor as strongly as they favor conservation. These 
people have grown up with conservation. They have always taken pride in it Many of 
them have already made expensive personal investments in it because they get to enjoy the 
results more than anyone. 

What's needed is some assistance from a soft-spoken biologist in understanding what 
species are on the land and what their habitat requirements are, and some modest 



13 



181 



incentives for any actual income lost due to the endangered species' real needs These will 
prove to be low-cost and highly rewarding investments for any endangered species 
program 

THOSE CONFUSING "CONSERVATION" SUBSIDIES 

One final word about the cropland diversion programs which have been operated 
fraudulently in the name of conservation. The USDA's Agricultural Stabilization and 
Conservation Service should never have been allowed to label itself a consei^'ation agency 
The agricultural price supports have had major environmental impacts, few of them 
favorable. The price supports have led to the draining of wetlands which should not have 
been drained, to the plowdown of steep and drought-prone land which should not have 
been plowed, to discouraging crop rotation and often the overuse of chemicals 

The so-called "conservation impact" of annual cropland diversion has actually been to 
stimulate the conversion of wildlands to crop production in other countries Our cropland 
setaside creates no wildlife habiat, prevents no soil erosion worth discussing, and produces 
no farm products. It simply wastes the sunlight and rainfall which descend on the land 
over the course of the year. 

The conservation impact of the so-called Conservation Reserve Program is also highly 
questionable. CRP did not even take out the most fragile farmland in America, let alone in 
the worid. Too many of the CRP acres were put under 1 0-year contracts because it was 
inconvenient for the owners to farm them. 

About 20 percent of the CRP land has been put into trees. Very likely this was most of 
the really poor land put into the CRP. Now that's done, because the trees will stay in 
place. The contracts on the rest of the CRP land should be allowed to run out. The land 
should be put back into the forage or crop production for which it is best suited - so long 
as any cropping is done with conservation tillage. 



182 



Professional 



SOCIETY OF AMERICAN FORESTERS 



5400 Groncnor Lane • Bcthesda. .Maryland 20814 • (301) 897^720 



Testimony by Gene Wood 

Representing 

The Society of American Foresters 

COMMITTEE ON RESOURCES 

U.S. House of Representatives 

May 25, 1995 

Re: Comments on the Reauthorization of the Endangered Species Act 



Mr. Chairman, my name is Dr. Gene Wood. I am representing the Society of American 
Foresters (SAF). The Society, 18,000 members strong, is the scientific and educational 
association representing the forestry profession in the United States, including public and private 
practitioners, researchers, administrators, educators, and students. Our primary objective is to 
advance the science, technology, education, and practice of professional forestry for the benefit 
of society. 



Introduction 

The Society of American Foresters recognizes TTie Endangered Species Act (ESA) of 1973 
(P.L. 93-295, as amended; 16 U.S.C. 1531-1543) as one of this nation's most important and 
powerful environmental laws. However, the methods of implementing the act and its use to 
restrict forest management on public and private lands suggest modifications are needed to 
temper the initial goals of the act with the reality of society's need for forest resources. 

The ESA was enacted to provide a means of conserving ecosystems upon which endangered 
and threatened species depend, and a program to conserve such species, including those 
covered by various treaties and conventions. Recent listings of species as threatened or en- 
dangered (T&E) have sharpened the debate on the goals, provisions, implementation, and 
consequences of the Act. Two species in particular~the red-cockaded woodpecker in the 
South and the northern spotted owl in the Pacific northwest-have intensified the discussion, 
especially as they are affected by management of forest lands. The protection of both species 
has significant impact on forest management options on a regional scale. 



Using the Scientific Knowledge and Technical Skills of ike Forestry Prvfession to Benefit Society 



183 



Comments on the Reauthorization of the Endangered Species Act 
Testimony - Committee on Resources 



ESA Reauthorization 

The ESA is in need of and overdue for reauthorization. As a result of a two year review of 
the ESA Reauthorization by the SAP ESA Reauthorization Task Force, comprised of 
professional foresters, SAP made the following recommendations to the US Congress in 
1993: 

• Continue listing of species based solely on science. 

• Provide for peer group review before completing the final listing process. 

• Develop criteria and guidelines for listing below the species level and use 
scientific techniques to answer questions on speciation, subspeciation, and 
distinct populations. 

• Mandate recovery plans that address physical and biological feasibility and 
consequences, economic efficiency, economic impacts, social or cultural 
acceptability, and operational or administrative practicality of recovery actions. 
Include a range of recovery alternatives and risk analysis of each. 

• Complete recovery plans within one year of listing using a core group of an 
experienced recovery team, managers, planners, and scientists. 

• Develop measurable and clearly defined recovery objectives and recovery 
timeframes for each species at lowest feasible social and economic costs. 

• Evolve toward ecosystem management as public policy for public land 
management as scientific knowledge becomes available to support this 
approach. 

• Prioritize species for recovery efforts to wisely allocate scarce financial 
resources. 

• Change the composition of the Endangered Species committee ("God Squad") 
to enhance involvement and knowledge of the issues by members. 

• Recognize rights of private landowners and society's responsibility to mitigate 
costs for species protection on private land. 



184 



Comments on the Reauthorization of the Endangered Species Aa 
Testimony - Committee on Resources 

• Develop a phased approach from voluntary landowner plans to acquisition of 
property at fair market values for species protection. 

• Delete citizen suit provisions against private landowners. 

Basic Principles 

Our position is built on several principles that together serve the needs of species protection 
and preservation while working within the general beliefs upon which society is built. The 
Society of American Foresters believes: 

• The conservation of species and ecosystems as provided for by the ESA is 
important to society and the profession of forestry. 

• Management of the nation's forests should take into account the entire biotic 
community, especially species which are threatened or endangered. 

• Species conservation must operate within the context of our democratic society 
that depends upon, and values private enterprise and respects private property 
rights. As societal goals change, so do the related issues. Thus, laws will be 
enacted and modified over time to meet changing public values and 
expectations. 

• The ESA must work in harmony with other laws (e.g. , National Environ- 
mental Policy Act of 1969, National Forest Management Act of 1976, Federal 
Land Policy and Management Act of 1976) to maintain and support healthy 
forest ecosystems that can insure a range of resource benefits, both amenity 
and commodity. Therefore, conflicts surrounding the interpretation of these 
laws regarding species preservation should be recognized and reconciled. 

• A comprehensive approach, using all environmental laws and trending toward 
broader ecosystem management, is needed to provide habitat protection for all 
species, not just those listed as threatened or endangered, thereby minimizing 
the need to list additional species. 

• Institutions, and landowners, both public and private, should support the 
purpose and intent of the ESA. Cooperation, not confirontation, will offer the 
greatest potential for success. 



185 



Comments on the Reauthorization of the Endangered Species Act 
Testimony - Committee on Resources 



• Public and private forest lands have a significant role and responsibility in the 
conservation of species and ecosystems. Pursuant to the 5th amendment to the 
U.S. Constitution, basic private property rights must be considered, valued, 
and protected where private lands are necessary to conserve a listed species or 
habitat. 

• As U.S. and world populations continue to increase, there will be additional 
demands on forest lands to produce a range of outputs. Applying the ESA 
must consider human needs for both commodities and a healthy environment. 

The Society of American Foresters makes the following recommendations for improving the 
current ESA and its application: 

The Listing Process 

Listing of species should continue to be based solely upon the best scientific and commercial 
data available, as currently stated in the ESA (Section 4b). The Secretaries of Interior and 
Commerce may, on their own initiatives, propose to list species, and interested parties may 
petition for a listing but, in either case, neither the general public nor the biological sciences 
community of interests are involved in the process for purposes of comment until after a 
proposal to list is published in the Federal Register. 

With respect to the scientific basis of a proposed listing, the broad interests of society must 
be provided for in a revised process which guarantees an objective and impartial application 
of science in determining the adequacy of biological information that supports proposals or 
petitions to list a species. 



Accordingly: 



Prior to a listing, a proposal to list should be referred to an independent Select 
Biological Committee (SBC) comprised of federal and state government, and 
private sector scientists who are not involved with federal agency listing ac- 
tivities. 

The SBC "peer group" would accept, hear, and review all information 
pertinent to a listing proposal and make a finding about the scientific adequacy 
of the proposal. If the Secretary's subsequent decision to list is inconsistent 
with the SBC finding, the Secretary must disclose the inconsistency, and 
explain to the public the reasons for proceeding with the listing. 



186 



Comments on the Reauthorization of the Endangered Species Aa 
Testimony - Committee on Resources 



• The SBC should also participate in developing or changing criteria and 

guidelines for listing any fish, wildlife, or plant below the species level. 
Modem scientific techniques such as electrophoresis, DNA analysis, or otiier 
state-of-the-art techniques should be employed where appropriate. The 
committee should also be involved in reviews of questions about speciation, 
subspeciation, and listing of populations. 

The Recovery Plan Process 

The recovery plan process is one of the most fundamental components of the ESA, and is 
initiated after a species is listed. Federal agencies have an affirmative responsibility to 
support the development and implementation of recovery plans, and to work towards 
recovery of listed species. A revised ESA should specify that recovery plans should address 
the physical and biological feasibility and consequences, economic efficiency, economic 
equity, social or cultiiral acceptability, and operatioPial or administiutive practicality of 
actions aimed at promoting the persistence and recovery of listed species. 



Additionally: 



Recovery plans should contain clearly defined objectives and timeframes that 
lead to measurable goals for recovery and ultimately delisting of tiie species. 

Critical habitat designation should become a key component of and emerge 
from the recovery plan process. 

Habitat Conservation Plans are an important component of this recovery plan. 
Habitat Conservation Plans (HCP) have been developed by private entities in 
voluntary cooperation with the U.S. Fish and Wildlife Service that are 
effective in preserving and providing habitat for endangered and tiireatened 
species. Plum Creek Timber Company has established HCP's for botii the 
Grizzly Bear and the Spotted Owl in the Cascades region of Washington. In 
the Southeast, Georgia Pacific Corp., Hancock Timber and International Paper 
Co. have developed HCP's for the Red-cockaded woodpecker. Pinehurst 
Countiy Club in North Carolina has managed Longleaf pine to encourage tiie 
Red-cockaded woodpecker to inhabit their property to facilitate recovery of the 
species. All of this has been accomplished under Section 7 consultations witiiin 
the current law. 

Realizing the potential for exti^me adverse impacts to the private property 
rights of Pacific Northwest landowners under Option 9 of the President's 



187 



Comments on the Reauthorization of the Endangered Species Act 
Testimony - Committee on Resources 



Northwest Foresti^ Plan, the US Fish and Wildlife Service has exempted all 
private woodland owners whose property is eighty (80) acres or less in size 
from the Spotted owl recovery program. Thus, the Interior Department is 
utilizing significant administrative leeway provided under the ESA. This is the 
type of science-based, common sense implementation of the ESA that is 
needed. More of this kind of innovation and constiTictive reauthorization 
discussion is needed. 

The entire recovery plan process should be completed within twelve months 
following the listing of a species. 

To improve the efficiency and continuity of the recovery plan process, special 
recovery teams should be established around a core group of experienced 
recovery process planners and scientists. The core team would be augmented 
with the appropriate species specialists from within and outside the agency 
responsible for each individual recovery plan initiative. Provision should be 
made for periodic review and public comment on proposed revisions. 

To gain the efficiencies that the shortened recovery plan process should yield, 
society must accept the fact that plans will be "living documents" that will 
chan ge as additional data becomes available . Recovery plans should 
acknowledge key information needs and provide for research, inventories, 
monitoring, and specified timelines to fill information gaps and be adjusted 
when necessary to reflect new knowledge. 

Recovery plans should include alternative options for achieving recovery, with 
associated risk analysis to assess the likelihood (high, medium, or low) for 
success of these options. Whenever possible, the alternative that achieves 
recovery with the least adverse socioeconomic impact should be selected. 

The agency responsible for recovery initiatives should develop a set of criteria 
and guidelines for establishing a species recovery prioritization process that, 
among other things, recognizes actual and potential ESA program fimding 
levels and limitations, societal values and priorities, and chances for recovery 
success. 

While recovery plans focus on public lands, a program to stimulate 
government/private partnerships should be developed and implemented where 
private lands are critical to the recovery effort. An option to include in such 



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188 



Comments on the Reauthorization of the Endangered Species Aa 
Testimony - Committee on Resources 



programs should be provision to relocate listed species from private to public 
lands where feasible. 

• Because the knowledge base for many situations is currentiy inadequate, a 

statutory requirement to list multi-species and "endangered ecosystems" would 
be premature at this time. Rather, the recovery plan process should be 
stimulated to evolve steadily over the longterm toward multi-species 
management plans that focus on ecosystems and ecological communities. 

The Secretary of the Interior and Undersecretary of Commerce for Oceans and Atmospheres 
released a lengtiiy set of documents on March 6, 1995, which describe ten principles to 
balance endangered species protection wiUi economic development. Their implementation 
will bring significant change to the way tiie Endangered Species Act is implemented. These 
principles are stiikingly similar to SAP's recommendations to Congress in 1993 concerning 
reauthorization of the ESA. They are: 

1. Base ESA decisions on sound and objective science. 

2. Minimize social and economic impacts. 

3. Provide quick, responsive answers and certainty to landowners. 

4. Treat landowners fairly and with consideration. 

5. Create incentives for landowners to conserve species. 

6. Make effective use of limited public and private resources by focusing on 
groups of species dependent on die same habitat. 

7. Prevent species from becoming endangered or tiireatened. 

8. Promptly recover and de-list threatened and endangered species. 

9. Promote efficiency and consistency. 

10. Provide state, tribal, and local governments with opportunities to play a 
greater role in carrying out the ESA. 



189 



Comments on the Reauthorization of the Endangered Species Act 
Testimony - Committee on Resources 



Private Lands-Roles and Responsibilities 

Seventy-two percent of American's commercial forests are in private ownership. These 
private lands play an important role in the protection of biotic communities. The principle of 
private ownership of land is based both upon English common law and the 5th amendment to 
the U.S. Constitution. Private ownership thus carries with it a commensurate stewardship 
responsibility. A revised ESA should encourage willing stewardship through incentive 
programs designed for various land use and management activities. The revised ESA, and 
the implementation of its principles, should recognize the following: 

• Private landowners who cede conti-ol of their lands to society in the name of 
preserving threatened or endangered species should receive just compensation. 

• Species recovery on private lands is a public responsibility. Private landowner 
roles concerning avoidance of "take", as defmed in the ESA, must be clearly 
stated in federal law. 

• Applicants for an "incidental take" permit are expected to Ue an associated 
Habitat Conservation Plan (HCP), which, for many landowners, could be 
prohibitively expensive. A new, more workable process should be substituted 
for the current HCP process. A phased approach, as outiined below, would 
address those landowners whose lands are essential to the conservation of a 
listed species, but who are unable to bear the costs. 

Phase 1 : Upon determination that a listed species occurs on private ownership, 
the agencies involved should, where the lands and species are essential to the 
conservation of the listed species, immediately seek to work with landowners 
and/or managers to develop a voluntary cooperative management plan that 
meets the species' needs for protection and landowner objectives. The plan 
should result in a documented fmding of "no take" or "no jeopardy". 
Generally, tiie process should be completed within twelve months. 

Phase 2 : When steps to produce voluntary plans do not prove successful, and 
where material interests in the property are necessary to meet species 
protection goals, the responsible agency should seek to purchase a conservation 
easement covering the interests needed. Generally, Phase 2 should be 
completed within 2 years of the start of Phase 1 initiatives. 

Phase 3 : If neitiier Phase 1 or 2 prove successful, the responsible agency 
should seek eitiier (1) to exchange public lands acceptable to the landowner, or 



92-551 - 95 



190 



Comments on the Reauthorization of the Endangered Species Aa 
Testimony - Committee on Resources 



(2) be prepared as courts may direct to justly compensate the owner. If an 
exchange is not acceptable, the agency should seek to acquire the affected 
property at a value at least as great as it would be without the presence of the 
listed species. Generally, Phase 3 should be completed within 3 years of the 
start of Phase 1 initiatives. 

As an alternative to a judicial determination of easement value (Phase 2) or compensation for 
a taking (Phase 3), a "Market Values Board" should be considered to settle taking and values 
disputes that may arise. This approach should not be construed as making "compensation for 
a taking" an agency responsibility without a legal finding under current law that 
compensation for the taking is due. Rather, SAF proposes the alternative as a "willing 
buyer - willing seller" scenario within which to resolve administratively taking 
compensation cases quickly and fairly. If the result is not successful, landowner claims that 
compensation is due for a taking of property shall be addressed in the courts under existing 
law. 

• If the responsible agency determines that management plans or acquisition of 
interests are not necessary, a landowner's responsibilities under tiie ESA 
should be considered terminated. 

• Surveys or other practices to determine the presence of a listed species are a 
wildlife agency's (state or federal) responsibility. Landowners should grant 
rights of ingress, and be encouraged to cooperate voluntarily, but not be 
expected to bear the cost. 

• Funding realities mandate establishing priorities for recovery of a species. 
Populations or individuals of a listed species outside of targeted recovery 
populations and /or critical habitats, and not part of the Phase 1 cooperative 
planning process, should not be subject to ESA restrictions. 

• It is a federal responsibility to ensure landowner compliance with the ESA. If 
a landowner is thought to be in violation of the Act, citizen suit provisions 
under section 1 1(g) of the ESA should be limited to actions against the 
appropriate federal agencies. 

The Endangered Species Committee 

The make up of the current Endangered Species Committee ("God Squad") guarantees its 
impracticality and unworkability. Its federal members (Cabinet and near-Cabinet level -ESA, 
Section 7(e)(3)) are seldom personally involved in ESA tasks at hand or routinely familiar 

-9- 



191 



Comments on the Reauthorization of the Endangered Species Act 
Testimony - Committee on Resources 



with the issues at stake. Except for the Secretary of the Interior (one of the six federal 
members) who chairs the ESA, the federal members should be replaced. In their stead 
should be appointed high-level and knowledgeable natural resource and social science 
professionals from other federal departments. The Secretary of the Interior, as under the 
current ESA composition, would be accountable for ESA exemption decisions. 

SAP urges Congress to immediately address the issue of reauthorizing the ESA. What is 
needed and desirable is reauthorization of the ESA through thoughtful discussion to devise 
legislation that is firmly grounded in science, and with due consideration to economic and 
social factors. 



192 



STATEMENT OF DR. TOM J. CADE, PROF. EMERITUS, CORNELL UNIVERSITY, 
AND FOUNDING CHAIRMAN, THE PEREGRINE FUND, INC., BOISE, IDAHO, ON 
CAPTIVE BREEDING, TRANSLOCATION, AND THE ENDANGERED SPECIES ACT. 

Mr. Chairman, Thank you very much for inviting me here before 
the Endangered Species Act Task Force to speak about the role of 
captive propagation, translocation, and other "hands-on" methods in 
the restoration of endangered species, and how those procedures 
relate to the overall strategy for preservation and recovery of 
species listed persuant to the Act. I will present this 
information from the perspective of my own work and that of the 
organization which I represent, and I will comment on how the ESA 
has influenced our endeavors — both the good and not-so-good 
aspects. I should note for the record that we have had a great 
deal of practical experience with the implementation of the Act 
ever since its enactment in 1973 and were involved in discussions 
about amendments in IS 78 and 1985. 

The Peregrine Fund, Inc. is a nonprofit conservation 
organization which was originally incorporated in the early 1970s 
for the study and conservation of falcons and other birds of prey. 
Today our mission has expanded to include a focus on birds 
generally as "flagship species" for the conservation of nature. 
Although we are best known for our pioneering work to restore 
populations of the Peregrine Falcon by captive breeding and release 
of propagated falcons back to nature, we have also been involved 
with similar efforts to restore four other U.S. endangered species 
and four foreign ones. In addition, we have carried out broader, 
ecological studies on raptors and other birds in a dozen countries 
around the world, notably in Greenland, Guatemala, Madagascar, East 
Africa, and the Philippines. Recently we have become involved in- 
a major research and propagation program for endangered forest 
birds in Hawai'i. 

Mr. Chairman, I have provided your committee with our latest 
Annual Report for 1994, which gives details about all of our 
current activities. I ask that it be included in the record of 
this hearing. We are a small organization, but we get a lot done. 

Restoration of the Peregrine Falcon 

Because restoration of the Peregrine has become a model for 
work on other species in our own organization, as well as for many 
other groups around the world, I want to review briefly the history 
of that effort, before considering some other successful "hands-on" 
projects involving birds. The idea of breeding Peregrines in 
captivity for species restoration emerged at a now famous 
conference held at the University of Wisconsin in 1965. At that 
conference experts from around the world became convinced that DDT 
and other organochlorine pesticides had been responsible for 
unprecedented population crashes of the falcon in both Europe and 
North America during the 1950s and early 1960s. At that time, the 



193 



Peregrine had already vanished as a breeding bird from all 
historically known nest-sites in the eastern third of the United 
States and southern Canada, and by 1975 fewer than 50 pairs could 
be found in the West. Arctic-nesting Peregrines in Alaska and 
Canada had declined by 50 per cent of their earlier numbers. 

Many scientists feared that the Peregrine might disappear from 
most or all of its range in North America and Europe. Against that 
background of concern, a number of biologists and falconers decided 
that captive breeding -light be a way to save the bird. It had been 
bred successfully once by a German falconer during World War II. 

Fortunately, the first EPA Administrator, William Ruckelshaus, 
rendered his landmark decision in 1972 to ban the use of DDT for 
nearly all purposes in the USA, and a ban on dieldrin followed soon 
after. Canada had made the same decisions even earlier. There was 
hope that the environment would soon be clean enough for the 
reappearance of the Peregrine, and that by proper release of 
captive bred falcons, the vacant eastern range could be recaptured 
and the greatly diminished numbers in the West could be increased. 

Following the Madison conference, a group of my graduate 
students and I began to gather in a collection of captive 
Peregrines for breeding at Cornell University, and by 1970 we had 
a "Hawk Barn" at the Laboratory of Ornithology on Sapsucker Woods 
Road with 20 or so potential pairs. In 1973, the same year the ESA 
became law, we produced our first young Peregrines. By 1975 we 
were producing enough young so that experimental releases could 
begin, and we needed money to move this work forward, as we had 
barely made ends meet with a small research grant from the National 
Science Foundation. 

By then the ESA had been fully implemented. I looked at the 
Act — I still have my original 1973 copy — and it seemed to me that 
the meat of the law was right up front in the "Findings," where it 
says, "The Congress finds and declares that. . .encouraging the 
States and other interested parties, through federal financial 
assistance and a system of incentives, to develop and maintain' 
conservation programs which meet national and international 
standards is a key to meeting the Nation's international 
commitments and to better safeguarding, for the benefit of all 
citizens, the Nation's heritage in fish and wildlife." 

I considered The Peregrine Fund to qualify as "an interested 
party," and so I went to the Fish and Wildlife Service and asked 
for some money to release Peregrines. It turned out that the 
Endangered Species Program only had $5.5 million in its budget for 
FY-75, and the Peregrine was not high on the list of priorities. 
I got a friendly pat on the back and sent on my way. 

I then looked at the second page of the Act, and under 
"Policy" I read, "It is further declared to be the policy of 



194 



Congress that all Federal departments and agencies shall seek to 
conserve endangered species and threatened species and shall 
utilize their authorities in furtherance of the purposes of this 
Act." Nothing coercive there, but the language seemed to allow for 
some moral persuasion. So, I went to the U. S. Army at the Aberdeen 
Proving Grounds in Maryland. I knew they had been doing some work 
with Bald Eagles in the Chesapeake Bay, and there was a man there 
with a passionate interest in Peregrines. He and I showed the top 
brass this policy statement, and — to make a long story short — they 
agreed to give me $15,000 if Fish and Wildlife would match it! I 
went back to the Service; they thought it was a good deal, and The 
Peregrine Fund ended up with its first federal contract for $30,000 
to release Peregrines. 

We also had help from the State of New Jersy that year, and 
from the Massachusetts Audubon Society. We released 16 Peregrines, 
including four from a .acommissioned gunnery tower on the Edgewood 
Arsenal. It was our version of beating swords into plowshares. 
Twelve of those falcons survived to return the following year. 

That was the beginning of a remarkable national and 
international cooperative effort to restore the Peregrine Falcon, 
an effort, I believe, unparalleled in the annals of wildlife 
conservation. For the past 20 years, all of the main federal land- 
holding agencies have been involved both as funders and as active 
participants in the field — the Fish and Wildlife Service, National 
Park Service, Forest Service, Bureau of Land Management, U. S. 
Army, and U. S. Navy. At least 30 state wildlife agencies have 
participated, and several county and city governments — New York 
City, Washington, D.C., Los Angeles, etc. Hundreds of non- 
governmental organizations — universities, conservation groups, 
foundations, utility companies, mining companies, oil companies, 
timber companies, insurance companies, banks, and hotels — not only 
funded work but in many cases provided locations for the release of 
Peregrines. Several hundred summertime field-assistants, many of 
them students, watched after the released falcons until they became 
independent, wild hunters. 

Briefly on the results of all this effort, more than 5,000 
Peregrine Falcons have been released in five regional programs, 
including Canada. In 1994 there were approximately 1,000 pairs in 
the contiguous United States, about as many as there ever were in 
this century, but their distribution is not the same. Now there 
are more than 80 pairs nesting in urban areas, while other pairs, 
are nesting on bridges or special towers in salt marshes. There 
are many more naturally occurring pairs in the Southwest than there 
used to be, but none along the major eastern rivers where Great 
Horned Owls have taken over the old, rivev-bluf f eyries. In Arctic 
Canada and Alaska Peregrines have increased to their pre-DDT 
numbers, and in some places are more numerous than they were. The 
entire story has been detailed in our book Peregrine Falcon 
Populations, Their Management and Recovery published by The 



195 



Peregrine Fund in 1988. 

Captive breeding and reintroduction cannot be credited for all 
this recovery, because there has been a great deal of natural 
increase from the remaining wild pairs following the reduction in 
use of organochlorine pesticides, especially in the Southwest and. 
Arctic regions. Even so, all of the 180 known pairs in the eastern 
third of the continent south of the boreal forest are derived from 
captive produced and released birds, and so too are all of the more 
than 60 pairs in the Greater Yellowstone Ecosystem. Also, about 
half of the pairs in the states of Colorado, California, Oregon, 
and Washington wear bands identifying them as released birds. The 
total is at least 3 50 reintroduced pairs in the United States. The 
American Peregrine Falcon is now ready for removal from the list of 
endangered species, and we expect to see it delisted this year. 

A final point aoout the Peregrine program. In all these 
activities across the length and breadth of our Nation, involving 
so many diverse interests which came together for the common 
purpose of restoring the Peregrine Falcon, we never had a major 
conflict that could not be resolved by using common sense, 
goodwill, and reasonable approaches. We never got involved in a 
formal jeopardy consultation, the designation of critical habitat, 
or any of the needless and disruptive conflicts we hear so much 
about these days. There were no lawyers, no court injunctions — 
none of that legal hassle. 

I do not mean to imply that there were no problems. There 
were plenty. I can remember specific cases involving highway 
construction and blasting near nests, timber cutting, bridge and 
building maintenance, rock-climbing on nesting cliffs, waterfowl 
hunting around refuges where Peregrines nest, deliberate shooting 
of falcons at pigeon lofts, and even problems with Peregrines 
killing other endangered birds. But in all cases these conflicts 
could be solved at the local level in the field through informal 
consultations and agreements among the concerned parties. There 
was no need for Big Brother to step in with a club. 

Captive Breeding and Translocation of other Avian Species 

The Peregrine Fund has carried out hands-on work with four 
other endangered species in the United States. In 1976 and 1977 we 
helped New York State launch a very successful effort to 
reestablish Bald Eagles in that state by translocating wild-hatched 
eaglets from nests in Wisconsin and Alaska. At the time only one 
unproductive pair remained in New York. The first eaglets we 
released at the Montezuma NWR paired and bred in 1980 and have 
reared young every year since. State biologists went on to release 
about 100 eaglets from Alaska, and today New York has 2 3 pairs on 
territory, not to mention some others in adjacent states. Bald 
Eagles have also been successfully reestablished in California and' 
in Oklahoma and the south-central states. 



196 



We have also been breeding the Northern Aplomado Falcon ir 
captivity and releasing the progeny on the Laguna Atascosa NWR ir. 
south Texas. This species used to be common in the grassland- 
savannas and Chihuahuan Desert region along our border with Mexico 
but disappeared as a breeder north of the border in the 194 0s and 
early 1950s. After releasing 43 falcons, this spring we have seen 
the first pair in 50 years nesting in Texas. 

In 1993 The Peregrine Fund became the third breeding center 
approved by FWS for the California Condor, joining with the San 
Diego and Los Angeles zoos. We house 10 pairs at our World Center 
for Birds of Prey ir Boise, Idaho. Captive breeding of this 
species has proved to je relatively easy, and as a consequence the 
number of condors has increased from only 21 in 1987, when the last 
wild birds were brought into captivity, to more than 100 this 
spring. Considering the great controversy that raged over the 
captive breeding of condors, this ;.mpressive number fully 
vindicates the unpopulir decision to take the birds out of the wild 
temporarily. 

The reestablishment of condors in natural surroundings is 
going to be much more complicated, and The Peregrine Fund will be 
working actively on this problem. It is likely that the first 
release of condors outside California will occur this fall in 
northern Arizona. 

More than 90 per cent of all bird extinctions since 1600 have 
been on islands, and Hawai'i is no exception. Today half of all 
endangered bird species inhabit these fragile, usually highly 
degraded environments, and 19 native forest bird species are listed 
as endangered in the Hawaiian Islands alone, most of them 
critically so. 

In 1992, the U. S. Fish and Wildlife Service and the State of 
Hawai'i requested our help to conserve and restore the islands' 
endangered birds, most of which are highly specialized and little 
known. We began with the Hawaiian Crow or 'Alala on the Big 
Island; only 11 crows still existed in che wild on the private, 
McCandless ranch. By taking eggs from wild nests and hatching them 
in incubators, rearing the young, and then releasing them back into 
the forest, we have been able to double the wild population in two 
years. Meanwhile, a captive population has also increased to about 
15 birds. 

In 1994 we entered into an agreement with FWS and the State to 
design, build, and operate a captive propagation and research 
facility on the Big Island for all endangered Hawaiian forest 
birds, with reintroduction as the goal. Again, this is a 
cooperative venture involving federal, state, and private 
interests. The FWS is funding the facility, the National 
Biological Service will conduct field research, the Bishop Estate 
has provided the land, and The Peregrine Fund will manage and staff 



197 



the operations. 

Overseas we have been doing similar work with the Philippine 
Eagle, Harpy Eagle, Madagascar Fish Eagle, and the Mauritius 
Kestrel, a small falcon endemic to this one Indian Ocean Island. 
The kestrel represents one of the most diagrammatic and impressive 
examples of how intensive management of a species can lead to 
greatly improved population viability. When work started on this 
species in 1973-74, the population had been reduced to fewer than 
10 individuals, only two known pairs, and only one reproductively 
active female, owing mainly to habitat loss and pesticides. Only 
two other bird species, both island endemics, are thought to have 
increased ntimbers significantly after such a severe bottleneck 
leaving a single reproductive female — the Laysan Duck in Hawai'i 
and the Black Robin in the Chatham Islands of New Zealand. By 
slowly building up a captive population from wild eggs hatched in 
the laboratory and then releasing the progeny, and later by also 
harvesting wild eggs for hatching and returning the young directly 
back to nature, the wild kestrel population has been increased to 
at least 70 pairs and about 300 individuals, and we expect an 
eventual population of some 200 nesting pairs on Mauritius. The 
accompanying article by C. Jones et al. from Ibis_(1995) gives a 
full account of this remarkable recovery, which has important 
implications for the restoration of other critically endangered 
island endemics. 

Birds of prey have turned out to be especially amenable to 
these sorts of highly manipulative procedures. In Europe, for 
example, captive breeding and translocation have been used to 
establish populations of the Goshawk, White-tailed Sea Eagle, and 
Red Kite in Britain, the Griffon and European Black Vulture in 
France, the Bearded Vulture in the Alps, Montagu's Harrier and 
Lesser Kestrel in Spain, Peregrine Falcon and Eagle Owl in Germany 
and Sweden, and the Pygmy Owl in the Black Forest of Germany. 

Conclusions 

I do not want to lead this committee astray with all these 
stories of success. Many of my colleagues in conservation biology 
have expressed strong reservations about the intensive approach to 
single species management, preferring more holistic approaches 
involving habitat preservation and management of ecosystems. They 
make some valid points. 

Captive breeding and translocation should not be viewed as a 
panacea for all species. They are not substitutes for habitat 
preservation and for equitable land-use practices that maintain 
suitible living areas for wild species at the scale of regional 
landscapes. Obviously there has to be suitable habitat remaining 
before a species can be successfully reintroduced, and, indeed, the 
more optimal and natural the habitat is the greater the chances for 
reestablishment. Many species require special habitats that result 



198 



only from natural, ecological processes, and they can survive 
nowhere else. Only a few species, such as the Peregrine, are 
generalized enough in their habits to survive in highly modified or 
new environments. Furthermore, only a few species can be bred 
successfully in captivity, and of those that can be propagated in 
significant numbers, only some can be successfully released to the 
wild because of poor physical or behavioral characteristics 
resulting from captivity. 

Still, hands-on methods have worked well for some species. 
They are perhaps best held in reserve as methods of last resort, 
when the more conventional procedures of legal protection and 
habitat preservation prove to be insufficient to prevent extinction 
or to restore greatly diminished populations. These actions may be 
called for when populations reach such critically low numbers that 
any of several kinds of chance events (environmental, demographic, 
genetic) could wipe out the entire species (e.g., California 
Condor, Mauritius Kestrel, Black Robin) , or when wide-ranging 
species become extirpated from large portions of their original 
range with little likelihood for natural recolonization (e.g., 
Peregrine Falcon, Aplomado Falcon, Bald Eagle, Goshawk and Sea 
Eagle in Britain, etc.). See the appended article by Cade and 
Temple ( Ibis 1995) for additional examples and discussion of the 
role of hand-on procedures. 

As better methods of husbandry for wild species in captivity 
and for translocation are developed, we will see more successful 
applications of these procedures, and as natural habitats continue 
to disappear or to degrade owing to human impacts, we will see a 
greater need for restorative actions for both plant and animal 
species at the community level of organization. Restoration 
ecology is an emerging discipline that will make significant 
contributions to future conservation. 

In short, captive propagation and translocation are just two 
among many techniques for recovering endangered species. There is 
no reason why they should be ranked as lesser or greater in 
importance than other methods. As with any other method, they 
should be used whenever there is a clear indication that species 
survival and restoration will be aided by doing so. 

To end my statement, Mr. Chaiirman, I want to comment on how 
the Endangered Species Act has both helped and sometimes hindered 
our recovery efforts. We hear a great deal these days about 
problems with the Act — about economic hardships caused to 
landowners and developers, and so on. I think it is understood by 
our citizens that the benefits of species preservation and nature 
conservation are not without costs, but I believe there is a simple 
remedy for the more egregious burdens that have been placed on some 
people. All that is required is to change the regulatory 
definition of the word "harm," and bring its meaning back in 
consonance with the other words with which it is associated in the 



199 



Act's original definition of "take." I am sure others have thought 
about this solution too, but I do want to make sure it has been 
called to this committee's attention. 

The main area where The Peregrine Fund has encountered 
difficulties has been with the permitting process required to do 
research and management. The problem is compounded by the 
overlapping and sometimes contradictory requirements for permits 
under CITES, which the ESA enables, the Migratory Bird Treaty Act, 
the Bald and Golden Eacle Protection Act, and the totally redundant 
Wild Bird Conservation Act. As currently written and implemented, 
the federal wildlife permitting regulations are too restrictive, 
complicated, and time-consuming. Compliance costs us hundreds of 
hours and thousands of dollars a year and discourages and inhibits 
conservation of species. We have made some recommendations for 
streamlining and simplifying the permit process by amendment to the 
ESA, in order to minimize the burden on both the permitter and the 
permittee, while still providing FWS with the necessary authority 
to screen out inappropriate applicants and to handle violators. 
These recommendations are in a memorandum to the Endangered Species 
Task Force dated 25 May 1995, and I ask that they be included for 
the record with my statement. 

Turning to the brighter side, as I have already indicated, the 
great strength of the ESA, aside from the moral and spiritual 
imperative it places on the Government and the Nation to save 
endangered species, are the provisions embedded within it for 
cooperative actions to preserve and recover species. Section 6 of 
the Act speaks to cooperation between the federal government and 
the states. I would like to see this section strengthened and 
funding for state actions increased in proportion to other 
programmatic functions, especially in relation to consultation and 
law enforcement. Further, I would like to see specific language to 
include NGOs, such as universities and conservation organizations, 
as cooperators. 

The closest approach to such language is in Section 4(f)(2), 
under "Recovery Plans," where it states that "The Secretary, in 
developing and implementing recovery plans, may procure the 
services of appropriate public and private agencies and 
institutions, and other qualified persons." I am a strong believer 
in getting the most qualified and dedicated people involved in 
endangered species work, whether they be government employees, 
university professors, or retired firemen. The Act needs to have, 
maximum flexibility to involve all those truly gifted people who 
have the "green thumb" and the zeal to succeed with the species 
they know and love best. Thank you. 



200 
Conservation and Private Property 

Remarks of 

Rob Gordon 

Executive Director 

National Wilderness Institute 



to the 

Endangered Species Task Force 

of the 

Committee on Resources 



€ 



Washington, DC 
May 25, 1995 



201 

Introduction 

Mr. Chairman, thank you for this opportunity to appear before the Endangered Species 
Task Force of Committee on Resources to provide the views of the National Wilderness 
Institute, a private conservation organization that is dedicated to using sound, objective 
science for the wise management of natural resources. 

The debate over the reauthorization of the Endangered Species Aa if often presented in die 
simplified terms of those who are defenders of species and those who arc defending 
themselves against an out of control and intrusive law. Critical questions are raised in such 
discussions. However, it is important that during die consideration of the law that we 
consider the fundamental question of whether the law has done what it was intended to do, 
has it been good for wildlife. If not, how should we go about making it better? 

The Endangered Species Act defines "conservation" as die use of all methods and 
procedures necessary to bring listed species to the point at which the Act's protection is no 
longer needed. Simply put, the Endangered Species Act was ostensibly designed to 
recover and delist animals and plants that were determined to be in danger of extinction and 
added to the Federal list of endangered and threatened species. FWS recognizes tiiis by 
their statement that, "The principal goal of the U.S. Rsh and Wildlife Service and die 
National Marine fisheries Service is to return listed species to a point at which protection 
under the Act is no longer required." 

Failure to Recover 

Unfortunately, although the status of some species has unproved during the time the Act 
has been in effect, to date not one species has been taken off the list as a result of 
successful ESA recovery efforts. Although eight (seven and one population) species have 
been officially termed "recovered," in each case "data error" (meaning putting if on the list 
was a mistake) or recovered because of factors unrelated to the Endangered Species Act 
would be a more accurate explanation for delisting. Each of these cases is summarized 
below. 



202 



Palau Birds: Three of the official 'recovered' species are birds on a the tiny North Pacific 
island of Palau. However, according to the General Accounting Office, diese birds actually 
owe their 'recovery' to the discovery of additional birds. 

Rydberg nodlkveteh: Another formerly listed species now officially termed as recovered 
is the Rydberg milk- vetch. This plant, however, should have had its delisting attributed to 
'data error'. John Turner, former FWS director revealed during a Senate hearing that the 
Rydberg milk-vetch was delisted because "fiirther surveys turned up sufficient healthy 
populations." 

Gray whale: Another on of the Act's claimed recoveries is the gray whale. Although it is 
true the gray whale's population is at an all-time high in the Pacific for the time frame for 
which we have data, its population has been growing since 1890 (83 years before the ESA 
was adopted), tripling from a low of fewer than 5,000 to approximately 14,000 three years 
before the Act became law. 

American alligator: While some still consider die Alligator a recovery, including the 
National Wildlife Federation, before controversy around the Act began to heat up even the 
National Wildlife Federation admitted in its magazine that the "familiar and grati^ong" 
recovery story of the alligator was "mostly wrong." 

Eastern brown pelican and Arctic peregrine falcon: Many ornithologists consider the 
banning of DDT, which preceded and was unrelated to the Endangered Species Act, as the 
primary reason for the resurgence of the Eastern brown pelican and the Arctic peregrine 
falcon. Likewise, in announcing the delisting of the Arctic peregrine falcon, FWS Director 
primarily credited the DDT ban for the bird's recovery . 

Bald Eagle: Although the bald eagle has not been delisted many of the Act's advocates arc 
hailing it as a success example. Recentiy, however, the National Audubon Society stated 
"Nearly everyone agrees that die key to the Eagle's resurgence- even more dian the 
Endangered Species Act- was the banning of the insecticide DDT in this country in 
1972. .. " Additionally, Fish and Wildlife data show a dramatic decline in the number of 
eagle deadis attributable to shooting, from 62% to 35%, in the decade preceding passage of 
the Endangered Species Act 



No Positive Trend 

Not only do we have no legitimately recovered species but also little if any indication that 
the Act is generally improving the status of any listed species. In its December 1990 
Endangered and Threatened Species recovery Program: Report to Congress the Service 
made the statement that : 

"Species listed longer appear to have a better chance of becoming stable or improving. " 

What this statement leads one to believe is that species listed longer have lower rates of 
population decline and therefor the Act is, if not yet leading to recoveries, heading in that 
direction. However, several years after the issuance this initial report FWS remains unable 
to substantiate this claim. In response to criticism about this statement, the Service sought 
refuge in the assertion that graph in the report used to illustrate this assertion " was... a 
'qualitative' visual rather than a product of specific statistical analysis." And although the 
recently retired Deputy Director of the Service, Dick Smith has stated that the word 
"appears", as it was used in this assertion, is a "weasel word" because of the lack of 
additional supporting d?^ta, the Service has not retracted this claim. 

% 'Stable' or 'Improving' Is Not a Meaningful Indicator 

Rather, in its most recent Report to Congress, the Service has highlighted the number of 
species which it has categorized as "stable" or "improving" with the clear intent that this be 
interpreted as showing the Act is leading towards recovered species. This, however, is a 
faulty assumption for several reasons. 

First, the determinations of 'improving' and 'stable' are purely qualitative measurements. 
One species could increase from 5 individuals to 6 and it could be called 'improving.' 
Another could go from a population of 1,000,000 to 999,999 and be called 'declining.' 
Clearly this information is not too useful without also having quantitative data. 

Secondly, there are no established or public guidelines as to what measurements are used to 
determine status. According to the Service this categorizing may be based on nothing more 
than a biologist's opinion. 



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Thirdly, there is a fundamental fallacy in the argument that because some percentage of 
listed species is categorized as being 'stable' or 'improving' at any particular moment one 
can assume that the implementation of the Act has resulted in a positive trend. This is an 
attempt to claim success based upon data that presents nothing more than a "snapshot" 
Essentially, this is like showing a still photograph of a car and arguing it is going fast 
From the photo we cannot determine that it is going fast In fact we cannot determine if it 
is moving at all or even its direction. In its most recent report the Service presents no data 
describing the status of species throughout intervening years of listing or any data 
specifying species' rates of improvement or stabilization in their years of listing — which are 
indispensable reference points if one is to discern trends in species recovery. 

If it were an absolutely safe assumption that all species are declining when added to the list 
then simply stating how what percent of species are later deemed 'stable' or 'improving' 
might mean something. However, for at least two reasons, this assumption cannot be 
made. 

Poor Listing Criteria 

First the law does not require that the population trend of a species be negative for the 
species to be added to the list Sec. 4<a)(l)(A-E) lays forth that a species may be listed, 
among other reasons, because of " . . . threatened . . . modification of habitat or range . . .," 
"... overutUization. ..." "the inadequacy of existing regulatory mechanisms . . .," or "other 
natural factors . . . affecting its continued existence ..." It arguable whether anything 
escapes the first criteria of threatened habitat modification. The meaning of the second 
criteria, "overutilization" is defined by the opinion of the regulator. The third mentioned 
criteria is not a reasonable justification for animals or plants which may be otherwise doing 
fine. Just because there might not be federal authority to regulate earthworms does not 
mean they are endangered. And as regards the last mentioned criteria, it is a bit of an 
impossible guideline for our current policy. For example, for one endangered invertebrate, 
the Iowa Pleistocene snail, the current government plan calls for conserving its remaining 
habitat until the next ice age. 



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B. A. D. or 
Best Available Commercial and ScientiHc Data 

Second, under the current program the evidentiary standards for listing are, in a word, bad. 
I use the word bad because it is an apt acronym for the standards which under Sec. 4 
(b)(1)(A) are "...best scientific and commercial data available..." The problem with best 
available data, or BAD, is that best is a comparative word. Thus the data need not be 
reliable, conclusive, adequate, verifiable, accurate or even good. 

As the number of listed species now approaches 1000, with thousands of official 
candidates in the wings, we are finding that the current standards often lead to mistakes. 
Reviewing these 'data errors' makes a strong argument against the B.A.D. standard and 
clearly demonstrates that all species arc not declining when added to the list 

Indian flap-shelled turtle: Regarding one 'data error', the Federal Register states: "As a 
result of the Indian flap-shelled turtie's inclusion on Appendix I of CITES [a United 
Nations endangered species list] the Service subsequendy listed the species as 
endangered." After listing, rather than before, a ". . .literature review was conducted to see 
if supporting evidence justified its current endangered status. No such supporting data 
could be found." In a further attempt to find supporting information, the Service then 
contacted turtle experts such as Dr. E. O. Moll, who happened to be researching in India at 
that time. Moll stated that it was "seemingly the most common and widespread turtle in all 
of India . . . How it ever made Appendix I is a big mystery." 

Pine Barrens tree frog: The case of another 'data error,' the pine barrens tree fi-og, is 
similar. Only those pine barrens tree frogs foimd in the frog's southern range were listed. 
After listing, FWS wo±ed with Florida officials to gather information about how many 
ft-ogs actually existed. According to the Federal Register, "Data were presented which 
expanded the species' known Florida distribution from 7 Okaloosa County sites to a total 
of over 150 sites. . ." in 3 counties. Further studies including Alabama areas revealed a total 
of 165 more sites than were believed to exist when a fiaction of this fi^og's population was 
listed — an error of more than 21 in magnitude. 

Mexican Duck: The Mexican duck, another 'error', was determined to be essentially a 
"blue-eyed version"[not literally] of a common duck, the mallard. The Federal Register 
states "all reports and observations of 'Mexican ducks' in the United States and Northern 



206 



Mexico must now be interpreted to be of only 'Mexican-like ducks'" and that '"Mexican 
ducks' ... are only identifiable segments of the entire population, just as brown-eyed and 
blue-eyed individuals are phenotypic segments of the human species." 

Tumamoc globeberry: The mmamoc globeberry, a vine which is the most recent 'data 
error,' was delisted by FWS on June 18, 1993. After including diis plant on the 
endangered species list for 7 years, fWS determined, "surveys have shown Tumamoc to 
be more common and much more evenly distributed across its range than previously 
believed. . .." Although never really endangered, during its 7 years on the list this plant over 
$1.4 million in funds from the Corps, BLM, DOD, NPS, USPS, and the Bureaus of 
Indian Affairs, Mines and Reclamation were expended on the plant and it was the basis for 
FWS to issue a jeopardy opinion on the Tucson Aqueduct 

According to a recent planned budget, 40 species will soon be considered for delisting. 
However, in many of these cases the most acceptable reason for delisting is again bad data. 
For example, in the case of the Maguire daisy, the Unita Basin bookless cactus and the 
Wright fishhook cactus, FWS has discovered greater "species abundance," "additional 
populations," greater "range distribution," and even that a 'variation' formerly thought to 
be distinct was not distinct at all. 

These are only a sample of many bad listings or data errors that are not 'declining' species. 
Others possible data errors are not even under consideration for delisting. For instance, in 
regard to spotted owls, a National Audubon Society Blue Ribbon Panel concluded in 1986 
that "it is likely that there are between 4,000 and 6,000 individuals in the Pacific states." 
Since that time surveys have indicated much greater numbers such as 6,849 owls in 
Washington and Oregon alone with an additional 3,234 owls in California — over 10,000 
northern spotted owls not including the thousands of Mexican and CaUfomia spotted owls. 

Little Data Available Regarding Many Listed Species 

Furthermore, in a comprehensive review of 306 recovery plans many showed there was 
littie information about the status of listed species. Following are a few example drawn 
from USFWS approved recovery plans: 

Cave Crayfish: 'Sufficient data to estimate population size or trends is lacking.' 



207 



Kentucky Cave Shrimp: The very small estimated population size of the species 
at the time of listing (approximately 500 individuals) made it stand out as being 
extremely vulnerable to extinction. Since the time of listing, new populations have 
been discovered... Population estimates.. .range from approximately 7,000 to 
12,000 individuals.' 

Red ffills Salamander: There is no evidence that the animal has occurred outside 
its present range within historic times...' and 'Comparative data relating temporal 
trends in population densities are unavailable...' 

Painted Snake Coiled Forest Snail: "Information on the snail's ecology and 
natural history is almost completely lacking.' 

In FWS's latest Endangered and Threatened Species Recovery Program: Report to 
Congress only qualitative information about species is included and there is not even a 
qualitative 'guesstimate' for about 27% of the listed species. This is an increase of 7.6% 
from the previous report. This high and increasing percent of 'unkowns' in combination 
with the facts that there has been a history of mistaken listings, that listing criteria are low 
and tiiat criteria standards arc the absolute minimal suggests that the number of species 
which continue to be wrongly listed may be quite significant 

Usefulness of Many Recovery Plans Questionable 

In addition to the fundamental structure of the law being flawed as concerns promoting recovery of 
endangered species as will addressed latter, some of the information reveled in recovery plans 
leads one to question about the future prospects of any species being recovered because of the 
management actions taken under the Endangered Species Act In a study reviewing the 306 
recovery plans written between 1970-1993 which covered 58 invertebrates, 23 reptiles, 8 
amphibians, 57 fish, 72 birds, 35 mammals and 135 plants several important and disturbing 
findings were made including: 

Recovery Plans often conflict with the definition of "conservation" in the Act by 
stating that recovery is unlikely or impossible. The Endangered Species Act defines 
"conservation" as the use of all methods and procedures necessary to bring listed species to 
the point at which the Act's protection is no longer needed. FWS states that, "The principal 
goal of the US. Fish and Wildlife Service and the National Marine Fisheries Service is to 



208 



return listed species to a point at which protection under the Act is no longer required." 
Several recovery plans, however, conclude that delisting is unachievable or even not 
"desirable." 

Examples: 

Cave Crayfish: "Due to the apparent limited potential for discovering new 
populations, the delisting objective may never be attainable." 

Florida Scrub Jay: "Because of the extreme usefulness of the Act in this case, it is 
not desirable to remove the scrub jay from protection under the Endangered Species 
Act" "There is no anticipated date of recovery because it may never be feasible to 
delist this species." 

Mexican Wolf: "...the Mexican Wolf Recovery Team sees no possibility for 
complete delisting of the Mexican wolf." 

Red HOI Salamander: [delisting] "may not be attainable within the foreseeable 
future because of the animals small range..." 

Ring Pink Mussel: "Total recovery is not thought possible." 

Spikedace: "Protection of existing population. Eventoal delisting, if possible." 

Tar River Spinymussel: "Though the ultimate goal is to recover the species to the 
point where it can be removed from the Federal List of Threatened Wildlife and 
Plants, full recovery of the Tar River Spinymussel may not be possible." 

Tuberculed-Blossom, Turgid-Blossom & Yellow-Blossom Pearly Mussels: "it 

is highly improbable, if and when living specimens of any one of die three subject 
species arc found that., the species can ever recover to the point of delisting." 

White Cat's Paw Pearly Mussel: "...recovery to the point where the species no 
longer requires protection under the Act is unlikely." 



Plans often have criteria for "delisting" or "downlisting which appear 
unattainable. 



Iowa Pleistocene Snail: "With a return to glacial conditions it will be resusciuted 
over the major part of the upper Midwest, provided its relictual areas are preserved 
and maintained..." 

Mount Graham Red Squirrel: "...at least 100 to 300 years will be necessary to 
restore Mount Graham red squirrel habitat" 

Stock Island Snail: "Although no estimates of historical population sizes are 
available, the extant population is presumed to have been moderately stable in the 
recent past because its present habitat has been stable...for the last 40 years...4.8 
acres." Recovery criteria called for expanding the snail's population from the only 
known 4.8 acre habitat to 20 acres and establishing 30 new populations. 
"Hopefully, the 'recovered' population would then be able to withstand the major 
stress of severe hurricane." 

Utah Prairie Dog: "To establish and maintain the species as a self-sustaining, 
viable unit with retention of 90 percent of its genetic diversity for 200 years." 

Plans often call for enormous habitat purchase. Of the 306 plans reviewed, at least 
184 call for the purchase of 'securing' of property for endangered species. 

Examples: 

Blunt-Nosed Leopard Lizard: "A current target acreage figure of 30,000 acres 
has been established for the San Joaquin Valley floor, with acquisitions emphasis 
on optional habitats containing high density blunt-nosed leopard lizard (BNLL) 
populations in identified "priority" habitat areas...conflicting land users will be 
reduced or eliminated in an effort to restore habitat to optimal condition. 
Gonsideration for delisting would be appropriate when similar objectives have been 
obtained for adjacent foodiill and plain areas known to contain BNLL populations." 



210 



Eastern Indigo Snake: "two 10,000-acre tracts lecommended for acquisition: one 
in GA, one in FL." 

Loggerhead Turde: Recovery criteria require tliat "25% of all available nesting 
beaches (560 km) is in public ownership..." 

Plans often call for additional laws and regulations or the employment of legal tools 
other than the Act Of the 306 plans reviewed in this study, at least 51 called for or 
suggested that additional laws or regulations be considered to protect a particular species. 
Numerous plans called for the application of other laws such as the Clean Water Act or 
consideration for the application of other federal laws such as designated a Scenic River to 
protect a species. Additionally, numerous plans called for encouraging, requesting or 
otherwise influencing state or lower level governmental entities to pass regulations, employ 
other laws or enforce ordinances, such as zoning laws, as a tool to protect listed species. 

Examples: 

Cumberland Monkeyface Pearly Mussel: "Investigate the use of Scenic River 
Status, mussel sanctuaries, land acquisition..." 

Florida Golden Aster: "Arrange for protection of land through ownership, 
cooperative agreements with landowners or other legal measures." 

Key Tree Cactus: "Local ordinances should be employed to prevent taldng from 
non-federal lands." 

Painted Snake Cdled Forest Snail: "The species cannot be fully secure without 
some control of land use in the cove." "If landowners are not in agreement, 
investigate other options for protecting habitat" 

Blunt-Nosed Leopard Lizard: "Use zoning process and ordinances." 

Swamp Pink: "In addition, the enforcement capability of existing regulations will 
be strengthened where possible, and nontraditional avenues for endangered species 
protection that may benefit Helonias (through wetlands legislation, soil erosion 
control requirements, etc.) will be investigated." 



10 



211 
We Can Conserve Species In Peril 

The poor record of the Endangered Species Act does not mean that we cannot conserve 
endangered wildlife. Compare the results of the ESA's regulatory and punitive approach 
which with the record of voluntary, incentive based efforts which benefit greatly from 
private property. Wood ducks and bluebirds came back from very depressed numbers 
because thousands of people built artificial nesting boxes on their private property. 

Wood duck boxes built by duck hunters and placed in swamps are actually better than 
hollow trees at keeping out predators such as snakes and raccoons, and as a result of these 
boxes there are now over three million wood ducks in America - enough to support an 
annual harvest of over eight hundred thousand ducks. 

When bluebird fanciers discovered about thirty years ago diat their favorite bird was 
declining primarily because the English starling, an aggressive, introduced species, was 
taking too many of the bluebird's nesting cavities, they designed bird houses with openings 
too small for starlings. In the last 15 years, over one hundreds thousand bluebird houses 
have been built and bluebirds arc on the rebound. 

During the past 20 years, wild turiceys have been restored from severely depleted numbers- 
to their original range and beyond at the impetus of turkey hunters. Today, wild turkeys are 
found in every state except Alaska. The turkey population is at an all time peak and 
growing. And the hunters who organized the restoration effort are now able to harvest five 
hundred thousand birds annually. 

Why are these private efforts so much more successful than the Endangered Species Act ? 
Consider die difference between incentives and regulation. Suppose the Endangered 
Species Act had been adopted early in this century - wood ducks, bluebirds and wild 
turkeys would have been added to die federal list and regulated under this law. 

How could one convince a landowner to give permission to put a nesting box on his 
property? 



11 



212 



How many landowners could afford to let the Wild Turkey Federation release birds on 
their land if the presence of an endangered species meant they could no longer use their 
land? 

Through the implementation of law upon heavy handed regulation backed up by punitive 
measures we have created a climate which pits rare plants and animals against property 
owners. As a result, they both. 

An Example of Perverse Incentives 

The experience of Ben Cone, a North Carolina timber land owner is a good example. Mr. 
Cone has always tried to harvest trees in a way that provided habiut for wildlife. Campers, 
hunters and fishermen have used his land because he believes wildlife, tree farming and 
outdoor recreation are compatible. But, when the endangered red-cockaded woodpecker 
arrived on his property, the Endangered Species Act put 1,000 acres of his property off 
limits to him. He has spent $8,000 on biologists to make sure he is following the stringent 
rules, and figures he has lost $1.8 million dollars in timber that is tied up in the area he 
cannot harvest He is prohibited firom harvesting these trees because they have reached an 
age at which they attract red-cockaded woodpeckers. As these trees become older the inner 
wood often becomes softer and thereby good insect hxmting ground for woodpeckers. 

Now, because of the perverse incentives of environmental regulation, Mr. Cone has been 
forced to ensure that no more of his property is taken because his trees become old enough 
to attract woodpeckers. To protect himself, Mr. Cone must harvest his remaining trees at 
an earlier age. The end result is diat all loose. Mr. Cone has lost part of his property and 
has reduced management options on the remainder. The red-cockaded woodpecker has lost 
because once the trees now off limits to Mr. Cone are gone there will be no more habitat 
generated on Mr. Cone's property because he cannot afford to allow his trees to get too 
old. And, the taxpayer looses because dollars spent on regulators ended up harming the 
very bird they were spent to protect 

Awakening to the Adverse Conservation Impact of the Act 

Not only are those who have long been critics of the Act pressing this point but also some 
who have, until recently, argued that the law functioned the way it should. Michael Bean 



12 



213 



of the Environmental Defense Fund, for example, recently told a US Fish and Wildlife 
Service employee training session: 

There is, however, increasing evidence that at least some private 
landowners are actively managing their land so as to avoid potential 
endangered species problems. The problems they are trying to avoid are the 
problems stemming from the Act's prohibition against people taking 
endangered species by adverse modification of habitat And they're trying 
to avoid those problems by trying to avoiding having endangered species on 
their property. . . . Now it's important to recognize that all of these actions 
that landowners are either taking or threatening to take are not the result of 
malice towards the red-cockaded woodpecker, not the result of malice 
towards the envirorunent Rather, they're fairly rational decisions motivated 
by a desire to avoid potentially significant economic constraints. In short, 
they are really nothing more than a predictable response to the perverse 
incentives that sometimes accompany regulatory programs, not just the 
endangered species program but others. So that's point one, that the 
strategies that have been used to date to conserve this species, the red- 
cockaded woodpecker, on private lands have probably contributed to the 
loss of the ecosystem upon which that bird depends. 

Similarly, Larry McKinney of Texas Parks and Wildlife Department recently stated: 

I am convinced that more habitat for the black-capped vireo and especially the 
golden-cheeked warbler has been lost in those areas of Texas since the listing 
of those birds than would have been lost without the Endangered Species Act 
at all. 

Clearly there is increased recognition that the Act is not only failing in some incentives but 
resulting in die opposite of what was intended. 

Conclusion 

Based upon the data available from USFWS, it is clear the Act has not yet produced the 
intended results and there is little evidence that the passage of more time, the expenditure of 
additional funds or more aggressive use of the same types of policies will change that The 



13 



214 



old way has been a failure for endangered species and for people. It has not led to the 
legitimate recovery of a single endangered species while costing billions of dollars and 
tremendous harm. The old way destroyed trust between people and our wildlife officials. 
We need to reestablish trust so that we can conserve wildlife - no program wiU succeed 
without the support of our fanners, our ranchers - of citizens. The old law failed because 
it is based on flawed ideas. It is founded on regulation and punishment If you look at the 
actual law by section you see it is all about bureaucracy - consultation, permits, law 
enforcement . . . there isn't even a section of the law called "conservation", "saving" or 
"recovery". It is a bureaucratic machine and its fiiiits are paperwork and court cases and 
fines - not conserved and recovered endangered species - what aU Americans want to see. 

The future of conservation lies in establishing an entirely new foundation for the 
conservation of endangered species - one based on the truism that if you want more of 
something you reward people for it not punish them. The debate that is unfolding here and 
before the public is one between methods of conservation. The old way is shackled to the 
idea that Washington bureaucrats can come up with a government solution through national 
land use control. Its supporters do not want to acknowledge that the law has failed because 
doing so would mean an end to the influence and power they have under the old system. 
The other promotes a new way that can actually help endangered species because it stops 
punishing people for providing habitat and encourages them to do so. It creates an 
opportunity for our officials - for government - to reestablish trust and work with and earn 
the support of citizens. 

As many other government programs are finally facing long overdue scrutiny and the 
prospect of reform, it is most appropriate that this Committee review a law that has been a 
conservation failure for over two decades. I commend the Chairman and the Task Force 
Chairman for addressing this issue, for providing so many opportunities for interested and 
affected Americans to participate and for their dedication to promote reforms that are 
meaningful to both wildlife and people. 



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215 



OPENING STATEMENT 

MICHAEL T. CLEGG 

Chair, Committee on Scientific Issues in the Endangered Species Act 

Public brieflng to release the National Research Council report 
Science and the Endangered Species Act 



Thank you for joining us this morning for the release of this National Research Council 
study regarding the scientific aspects of the Endangered Species Act. The committee that my 
colleagues and I represent includes a wide spectrum of expertise in areas such as ecology, 
population biology, systematics, paleontology, wildlife management, law, decision analysis, and 
economics We come from universities and private industry Some of us have government 
experience Our report is a consensus statement that reflects the range of our perspectives, and 
we all agree with its conclusions and recommendations. 

Our study was initiated by the National Research Council nearly two and a half years 
ago in response to a bipartisan request from three congressional leaders — former House 
Speaker Thomas Foley, Senator Mark Hatfield, and Representative Gerry Studds This was a 
most welcome request, because sound public policy often depends on sound science 



216 



In broad terms, we were asked whether the Endangered Species Act conforms to 
contemporary scientific knowledge about habitat, risks to species, and identifying species, 
subspecies, and other biological groups below the species level We also were asked to consider 
whether the Act conforms to what we know about the factors needed for recovery of endangered 
species, possible conservation conflicts between endangered species, and the timing of key 
decisions under the Act. 

The 1973 Endangered Species Act and its amendments constitute the broadest and most 
powerful law in this nation to protect endangered species and their habitats The survival of 
species such as the whooping crane, American peregrine falcon, southern sea otter, and black- 
footed ferret attests to the Act's success. But it is also a controversial law, particularly in cases 
where its implementation has delayed or prevented public and private development and other 
economic activities Many of these conflicts have played out in the public-policy arena and in 
the courts 

The distinction between science and public policy is often fuzzy, because the possession 
of scientific knowledge and the implementation of that knowledge are so closely linked But we 
have endeavored to restrict our advice to the scientific aspects of the Act. We were not asked to 
comment on the social and political decisions concerning the Act's goals and trade-offs, and 
have not done so. Nonetheless, we believe that some of our recommendations, if adopted, will 
improve the Act's implementation and will make some of the trade-offs easier to understand and 
resolve 

Since the Act was first passed, scientific knowledge has been anything but static Our 
understanding of biological species, in terms of their genetic makeup and evolutionary heritage, 
has greatly expanded during the past two decades A rich array of new experimental tools has 
been acquired from both genetics and computational biology and has helped drive a revolution in 
the study of the diversity of organisms and their natural relationships Likewise, developments 
in conservation biology and population genetics have greatly increased the scientific 



217 



understanding of risk to endangered species We believe that these new tools should be put to 
work to inform decisions associated with the Act 

Nevertheless, our committee finds that there has been a good match between science and 
the Endangered Species Act Given new scientific knowledge, we simply recommend changes to 
improve the Act's effectiveness. 

The ultimate goal of the Endangered Species Act is to ensure the long-term survival of a 
species We all know that species extinctions have occurred since life has been on Earth But 
the current rate of extinction is among the highest in the entire fossil record, in large part 
because of human activity. The introduction of non-native species and especially the 
degradation and loss of habitat are causing extinctions at a rate that many scientists consider a 
crisis 

The relationship between vanishing habitats and vanishing species nationwide is well 
documented Consequently, protecting species in the wild most often means conserving the 
habitats where they live and breed The Act's emphasis on protecting habitat reflects current 
scientific understanding of this crucial relationship. 

We endorse the regionally based, negotiated approaches to the development of habitat 
conservation plans provided for by the 1982 amendments to the Act. Although difficult to 
negotiate, because they require agreement among many contending parties, such plans are 
already in use in several regions of the country to protect endangered and threatened species. 
The US Fish and Wildlife Service should provide guidance on obtaining the necessary- 
biological data and other information to help develop these plans 

The 1978 reauthorization of the Act requires the identification of "critical habitat"based 
on the best available science, after the consideration of economic and other relevant impacts 
We realize that detailed information needed to designate critical habitat for a given species often 
is lacking Just because a species occurs within a habitat does not necessarily mean that it 
requires that habitat for survival To complicate matters, the absence of a species from a given 
habitat does not mean that the habitat is not critical to the survival of the species These 



218 



uncertainties, combined with public concern over economic consequences, often make 
designating critical habitat both controversial and arduous This can delay or even prevent 
protection 

To avoid such situations, we recommend that when a species is listed as endangered, a 
core amount of "survival habitat" should be protected as an emergency, stop-gap measure — 
without reference to economic impact This survival habitat should be able to support either 
current populations or the population necessary to ensure short-term survival for a period of 25 
to 50 years When the required recovery plans are adopted or the required critical habitat is 
identified and designated, the survival-habitat designation should automatically expire. 

Shrinking amounts of available habitat are creating conflicts between what is needed to 
protect different species in the same region, though such conflicts have been rare in the past. 
The most effective way to avoid conflicts is to maintain protected areas large enough to allow 
for the existence of diverse habitats within a single area 

There is no scientific reason that standards relating to protecting habitat and species 
should differ on public and private lands As our report says, the degree to which public and 
private entities should bear the responsibilities of the Endangered Species Act is a policy and not 
a scientific matter But there is no escaping the scientific conclusion that all species have 
certain requirements no matter who owns the habitats. Public and private landowners do not 
always respond in the same way to laws, regulations, and other incentives As a result, 
regulations applied equally on both public and private lands might not provide the same degree 
of species protection For this reason, different management policies may be required for them 

Our committee also was asked about the definition of species The question of what 
constitutes a species under the Endangered Species Act can be difficult to answer, requiring 
scientific interpretations about subtle differences m the physical, genetic, or behavioral 
characteristics that distinguish subgroups within a species from one another We believe that the 
Act's inclusion of these distinct population segments is scientifically sound and should be 
retained 



219 



But to provide greater scientific objectivity in identifying these population segments, we 
recommend using the concept of "evolutionary units"' that identify biological groups with 
distinctive behavioral and genetic characteristics, and that possess the potential for a distinct 
evolutionary future. By focusing attention on the important, distinctive attributes of organisms, 
the use of evolutionary units would provide policy-makers with an additional scientific basis for 
determining which groups of plants and animals merit protection. 

The scientific identification of evolutionary units should be made independently from 
decisions about whether they need protection. What I mean by this is that although there may be 
persuasive reasons unrelated to science to protect certain plants and animals, there might not be 
scientific reasons for listing them as evolutionary units. For example, bald eagles in the lower 
48 United States and in Canada intermix and are not biologically distinct, so there is no 
scientific justification for identifying the U.S. population as an evolutionary unit. 

We believe that the recovery plans designed to achieve the goals of the Endangered 
Species Act often are developed too slowly or have provisions that cannot be justified 
scientifically To ensure that these plans are effective, the US Fish and Wildlife Service, which 
oversees each plan, should establish explicit guidelines for developing them Species recovery 
plans should include as much guidance as possible concerning which human activities are likely 
to harm recovery and which are not, to enable people to plan economic activities Also, for 
purposes of evaluation, plans should incorporate estimates of the probabilities of achieving 
various recovery goals over different periods of time 

The Endangered Species Act was not designed to carry out all of our country's 
conservation policies More approaches need to be developed and implemented as complements 
to the Act to prevent the continued, accelerating loss of species and to reduce economic and 
social disruption and uncertainty The Endangered Species Act by itself cannot prevent the loss 
of all species and their habitats, but should be viewed as one essential part of a comprehensive 
set of tools for protecting them 



220 



Many federal, state, and local governments and private organizations are developing such 
approaches, including cooperative management strategies that involve shared decision-making 
among several government and non-government groups, the large-scale management of 
ecosystems and landscapes; the reconstruction or rehabilitation of damaged ecosystems, the 
development of mixed-use areas that provide for human activities as well as wildlife habitat; and 
the use of various market-based economic incentives. 

In general, we hope that our recommendations can help make the implementation of the 
Act more effective at protecting endangered species, more predictable, and less disruptive for 
everyone We believe that there is a common ground for a more enlightened and cooperative 
public conservation policy 

Thank you very much I will now ask my colleagues to make a statement, and then we 
will be pleased to answer your questions Please let us know who you are by stating your name 
and affiliation before you ask a question. 



221 

STATEMENT OF 

DR. WILLIAM Y. BROWN 

RCG/HAGLER BAILLY, INC. 



HEARING ON REAUTHORIZATION OF 
THE ENDANGERED SPECIES ACT 



BEFORE THE 

ENDANGERED SPECIES ACT TASK FORCE 

HOUSE RESOURCE COMMFTTEE 



May 25, 1995 

My testimony gives perspectives on the National Research Council report on Science 
and the Endangered Species Act (NRG Report), released on May 24th, and also 
comments on corporate biodiversity programs generally. 

The NRC Report was initiated by a letter to the President of the National Academy 
of Sciences in November 1991 from Senator Mark Hatfield, Representative Tom 

Foley and Representative Gerr>' Studds. The letter requested a study of several issues 
related to the Endangered Species Act. Funding was provided by the U.S. Fish and 
Wildlife Service in September 1992, and the NRC convened the Committee on 
Scientific Issues in the Endangered Species Act (Committee) to prepare a report. I 
am a member of that Committee. 

The November 1991 letter asked questions on six issues: definition of species; 
recovery planning; role of habitat conservation; conservation conflicts between 



92-551 - 95 - 8 



2 
species; risk; and issues of timing. I will comment on the first three items here, and 
will try to answer questions on the others if you have them. The NRC report 
addresses each issue in detail. 

The Species Concept 

On the definition of species, the Committee recommended that the concept of the 
evolutionary unit or EU be adopted. As recommended, an EU is a group of 
organisms that "shares a common evolutionary lineage and contains the potential for 
a unique evolutionary future." Most discussion was on how to define "distinct 
population segments" of vertebrates, which are eligible for listing under the ESA. 
The Committee members concluded that animals and plants generally will meet the 
definition of an EU if they have been described as species or subspecies in a 
conventional way. Furthermore, the Committee found no scientific basis for giving 
animals more protection than plants under the ESA. 

Recovery Planning 

The Committee was concerned that recovery planning under that ESA has been too 
slow, often done without consideration of how sections 7, 9 and 10 are to be 
implemented, and without realistic budgeting. Doing a better job would benefit all 
concerned. To this end, Lhe NRC Repon recommends that all recovery planning 
include "recovery plan guidance," which addresses activities anticipated for review 
under sections 7, 9 and 10 of the ESA. To the degree possible, this guidance should 



223 

3 
identify activities that can be assumed to be consistent with the requirements of those 
sections, activities that can be assumed to be inconsistent with them, and activities 
that require individual evaluation. The idea is to clear the deck of issues for which 
regulators already know, or should know, the answers. 

Habitat and Conservation 

The NRC Report observes that conservation of species diversity is directly associated 
with habitat conservation. It finds that habitat protection is a prerequisite for 
conservation of biological diversity and protection of endangered and threatened 
species, and that the ESA, in emphasizing habitat, reflects the current scientific 
imderstanding of the crucial biological role that habitat plays for species. 

Beyond the Endangered Species Act 

The NRC Report also concludes that the ESA cannot by itself prevent all species 
extinctions, and that addiiionai approaches lo natural resource management are 
needed thai do not depend on listing individual species. These are essential to 
stopping endangered species "train wrecks." Many programs akeady exist for public 
land biodiversity management, and a few government programs support partnership 
conservation activities with the private sector. These private sector partnership 
programs are by imitation only from landowners and to my knowledge have been 
welcomed by them. The Task Force should note that at least one of them, the Fish 
and Wildlife Service Partners for Wildlife program, has been proposed for extinction 



224 

4 
itself. This is exactly the kind of program that should be continued and enhanced if 
our country is to get beyond the important but last ditch triage of the ESA. 

Many private sector biodiversity conservation efforts also are being undertaken by 
businesses entirely with their own money and without regulatory mandate. I played J 
a significant role in setting up a biodiversity conservation program for one major 
company, which adopted a policy of "no net loss of wetlands or other biological 
diversity" on its properties worldwide. Recently I helped to organize workshops on 
corporate biodiversity programs involving more than 20 major companies. Most are 
implementing substantial programs to advance conservation of nature (including 
endangered species) on their properties. Many activities are not mandated by law. 
The ESA was not part of these workshops, and these firms differ in their opinions of 
the regulatory mechanisms of the statute. However I think it is safe to say that most, 
if not all, of the company participants recognized great value in animal and plant 
species, and accepted as a stewardship ethic the responsibility not to contribute to 
their extinction. 



15105 Watergate Road 
Silver Spring, MD 20905 
14 March 1995 

The Honorable Richard Pombo 

Chair, ESA Task Force 

c/o Elizabeth Megginson, Counsel 

Committee on Resources 

U.S. House of Representatives 

Washington, D.C. 20515 

Dear Congressman Pombo: 

I am writing in regard to the hearings your ESA Task Force is holding 

concerning reauthorization of the ENDANGERED SPECIES ACT. I respectfully 

ask that this letter and the appended materials be included as a part of the 
hearing record. 

As a practicing biomedical scientist involved with the discovery of novel 
treatment modalities for human disease, I wish to make known to the Task 
Force my professional opinion that a strong, effective, well-funded 
Endangered Species Act is a requirement for the future health and well-being 
of Americans and all humans. The entire assemblage of species upon this 
earth represent a vast, largely untapped reservoir of knowledge and 
understanding which we cannot yet begin to comprehend. Human activities 
are driving more and more of these species to extinction. This cannot be 
permitted to continue for it will deprive future generations of knowledge 
which will be vital to their survival and quality of life. 

I have heard often the argument that saving species costs too much and 
impairs economic development. My reply is that no one has any accurate 
conception of how much we benefit from species diversity. The fact is that w e 
cannot afford not to save species! 

I wish to illustrate this latter point first with a specific example from my own 
scientific work and then secondly with a more general example of how the 
field of biomedical research is impacted by the wealth of species in nature. 

I am trained as an organic chemist (Ph.D.) and for the last three decades have 
performed chemical and biochemical research aimed at discovery of new 
approaches to the treatment and cure of human disease. I am presently Chief 
of the Section on Biomedical Chemistry in the Laboratory of Medicinal 
Chemistry in the National Institute of Diabetes and Digestive and Kidney 
Diseases at the National Institutes of Health in Bethesda, Md. I have published 
over 160 scientific papers, and serve as a member of the Board of Editors of two 
scientific journals. Of course, this entire letter represents my own personal 
scientific opinion and in no way relates to opinion and policy of the NIH. 

For approximately 15 years, I have studied a little known mechanism found in 
reptiles, birds and mammals. This system, called 2-5A for short, is an early 
defense mechanism against virus infection. It acts even before the immune 
system can respond and so plays a vital role in controlling the spread of virus 
disease. This unique natural defense system has now yielded in our laboratory 



226 



a novel approach to the treatment of not only viral diseases, such as AIDS, but 
also potential approaches to cancer therapy, heart disease, and a host of other 
human maladies. The U.S. Government has applied for a patent based on our 
work with this 2-5A natural defense system, and also has licensed the patent 
rights to a start-up biotechnology company to pursue aggressively the full 
therapeutic potential of this new, nature-based, technology. (I include some 
relevant scientific papers in support of these points) 

Now you can see what this one solitary clue supplied by a natural system is 
capable of doing. This natural system is providing us with new potential 

approaches to the treatment of a wide variety of human disease. In the 
process, it is creating jobs, and if fully realized, it will create a marketable 
product for the pharmaceutical industry. Yet there is no way that I or any 
other scientific investigator could have developed this technology without the 
information contained in nature! Nature remains the great provider. 

I want to call your ESA Task Force's attention to one of a large number of 
additional contributions of species diversity to the health and economic well- 
being of Americans. I refer here to the contribution of strange slimy 
creatures which have made possible the biotechnology revolution (see 
appended Table entitled "The Role of Biological Diversity in Biotechnology"). 
Among other things, the enzymes found in this wide variety of life forms have 
enabled the precise cutting of DNA, the stuff of genes, so that pieces of DNA 
can be recombined in new ways. Yet, three decades ago, someone surely could 
have asked "what good is Enterobacter agglomerans or Kluyvers ascorbata ?" 
Only those who pretend the omniscience of God can dare to ask such questions. 

The second table I have appended is entitled "Applications & Sales of Selected 
Biopharmaceuticals". This is by no means an exhaustive listing of those 
pharmaceuticals brought into production by application of the recombinant 
DNA technology made possible by many of the organisms referred to in the 
preceding table. Consider, Mr. Chairman, the relief of human suffering made 
possible by secrets from the diversity of life on earth. Consider, Mr. Chairman, 
the billions of dollars in sales generated thanks to the lowly fauna of Creation. 

Mr. Chairman, government has always moved to prevent harm to the common 
good. Without a strong, vital, aggressive, and well-funded Endangered Species 
Act, our present society, intent on short-term gain, will irreparably harm the 
future physical health, quality of life, and economic well-being of not only 
the present generation, but it will even more severely circumscribe the 
choices, freedoms, and lives of unborn generations. 

The Earth's diverse species, each and every one of them, provide a richness to 
humans only beginning to be appreciated. I implore you and your Task Force 
and the U.S. Congress to provide the strongest possible legislative framework 
to protect the fabric of all life, and in so doing, thereby safeguard the future 
of hirmankind. 




227 



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228 

The Role of Biological Diversity in Biotechnology 
Enzyme Organism Source 



Aci I 
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Arthrobacter citreus 
Acinetobacter Iwofii 
Acinetobacter Iwoffi N 
Arthrobacter species 
Bacillus laterosporus 
Bacillus pumilis 
Bacillus species 
Bacillus species 
B. stearothermophilus 
Enterobacter agglomerans 
Kluyvers ascorbata 
Pseudomonas alcaligenes 
Pseudomonas fluorescens 
Pseudomonas lemoignei 
Pseudomonas medicina 
Pseudomonas maltophila 
Pseudomonas putida 
Xanthomonas campestris 

Thermococcus litoralis 



Deep Vent 
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Venice, FL, garden 

Washington, D. C. soil 

Maine lake 

Moundsview, MN swamp 

soil 

soil 

Manchester, MA soil 

Wenham, MA soil 

Papua New Guinea soil 

Boulder, CO stream 
Keene, New Hampshire 
South Louisiana bayou 
West Chicago, IL soil 
Washington, D. C. 
Beverly, MA soil 
Southern Finland 
W. Chicago wetlands 
Bahamas 

submarine thermal vent 
Naples, Italy 

Guaymas Basin 

Gulf of California 



Source: Dr. Ira Schildkraut, New England Biolabs, Beverly, MA 



229 




NATIONAL ASSOCIAHON OF REALTORS* 



NATIONAL ASSOC ATION 

_^ _ ^^ . . ^^^ -^^® Washington, DC 20001-4507 

OF REALTORS .^^o..^. 

Dr. Almon a Smith. CAE, Executive Vice Pteeident 

realtor' The voice for Real Estate® "" ""^ 



Jerry GlovenMlo, Vice President 
Government Relatione 
Telephone202 383 111S 

Fix 202 383 7540 



The Honorable Don Young 

Chair 

House Resources Committee 

2331 Raybum House Office Building 

Washington, DC 20515 

Dear Chairman Young: 

On behalf of the NATIONAL ASSOCIATION OF REALTORS® (NAR), I would like 
the attached testimony on the Endangered Species Act entered into the record for the hearings 
which were held in May of this year by the House Resources Committee. 

The NATIONAL ASSOCIATION OF REALTORS® believes the way in which the 
Endangered Species Act (ESA) is implemented is of the major importance. We support the 
addition of amendments to the Threatened and Endangered Species Act that recognize 
socio-economic considerations and urge that compensation be required in cases where the value 
of private property has been unduly diminished or jeopardized by government action under the 
Act. 

While the Association supports programs to enhance the environment, we believe that 
these programs should be conducted in a balanced manner. Plaiming for the classification and 
use of land must adequately consider the needs of housing, agricultural, commercial and 
industrial grovrth, as well as the quality of life and a healthy local economy. 

Thank you for the opportunity to express our views. 

Sincerely, 



Gill Woods, Jr. 
President 



ti> 



230 




Statement of ttie 
NATIONAL ASSOCIATION OF REALTORS^ 

The voice for Real Estate^ 
THE WORLD'S LARGEST TRADE ASSOCIATION 



SUBMITTED TO THE HOUSE COMMITTEE 

ON RESOURCES 

ON THE ENDANGERED SPECIES ACT 

JUNE 1995 



231 

STATEMENT OF 

THE NATIONAL ASSOCIATION OF REALTORS® 

SUBMITTED TO THE HOUSE COMMITTEE ON RESOURCES 

ON THE ENDANGERED SPECIES ACT 

JUNE 1995 

INTRODUCTION 

Thank you for the opportunity to submit the NATIONAL 
ASSOCIATION OF REALTORS'® comments for the record on the 
federal Endangered Species Act. The NATIONAL ASSOCIATION OF 
REALTORS®, comprised of nearly 750,000 members involved m all 
aspects of the real estate industry, has a keen interest in the Endangered 
Species Act and private property rights. 

The Association believes that development should be encouraged 
as it is a stimulus to the economy, it increases the tax base, provides 
places to live and work, and offers opportunities that would not 
otherwise exist. However, we also realize the responsibility we have to 
educate and work with local, state, and federal government officials to 
develop responsible growth planning that is equitable and considers the 
divergent needs of transportation, housing, agriculture, commercial, 
industrial, and envirormiental concerns. 

The NATIONAL ASSOCIATION OF REALTORS® believe 
the way in which the Endangered Species Act (ESA) is implemented is 
of the major importance. We support the addition of amendments to the 
Threatened and Endangered Species Act that recognize socio-economic 
considerations and urge that compensation be required in cases where 



232 



the value of private property has been unduly diminished by government 
action under the Act. 

While the Association supports programs to enhance the 
environment, we believe that these programs should be conducted in a 
balanced maimer. Plarming for the classification and use of land must 
adequately consider the needs of housing, agricultural, commercial and 
industrial growth, as well as the quality of life and a healthy local 
economy. 

NATIONAL ASSOCIATION OF REALTORS® ENDANGERED 
SPECIES POLICY CONCEPTS 

Recognizing the extreme environmental significance of 
Endangered Species, the NATIONAL ASSOCIATION OF 
REALTORS® believes that any legislation or regulation should include 
the concepts as outlined as follows: 

• Compensation to property owners whose land is adversely affected 
by implementation of any provision of the ESA. 

• Use of incentives to private property owners for species protection 
rather than relying solely on restrictions and penalties. 

• A strict limitation on how far dovm the chain of sub-species will 
be allowed in listings. 

• A listing as threatened or endangered must be based on verifiable, 
scientific evidence. 

• Provisions to protect private property rights and narrow the reach 
of the ESA on private lands, to include, but not limited to, notification 
of private property owner of potential listings which impact their 
property. 



• Increase local involvement in creating and implementing recovery 
plans. 

• Support for the concept of substantial equivalency for states that 
currently have adequate legislation. 

• No implementation of a National Biological Survey of private 
property without express written permission of the property owner. 

• hidependent peer review committees should review both the 
scientific evidence and economic impacts of all listings. 

• Periodic review and expedited delisting of species when supported 
by verifiable scientific evidence. 

PRIVATE PROPERTY RIGHTS 

NAR's concerns extend beyond the immediate interests of the real 
estate industry. Because this issue has a significant impact on private 
land, we also wish to direct attention to the larger issue of protecting 
private property rights. 

The NATIONAL ASSOCIATION OF REALTORS® has worked 
for years to encourage a balanced approach to environmental protection 
that accommodates the important needs for both conservation as well as 
economic opportunity and vitality. To balance the efforts of 
government to serve the public well-being by controlling pollution and 
protecting natural resources with the economic and property rights 
secured by the Constitution, we believe that the cost of the benefits to 
the general public achieved by such regulation should be borne by the 
beneficiaries~the general public. We oppose those aspects of 
environmental and natural resource legislation that amount to 
uncompensated condemnation of private property through government 



234 



action. It is essential that the rights of private property owners be fully 
recognized in local, state, and federal programs and laws. 

To that end, we urge the adoption of legislation which provides that the 
economic burdens associated with the protection of appropriate 
endangered species be borne by the public, rather than private 
landowners. Such legislation should further establish a means for 
landowners to be compensated when deprived of the right and 
opportunity to use their property in a productive fashion in order to 
further the end of species preservation. 

ENDANGERED SPECIES IMPACTS ON HOUSING 
AFFORD ABILITY 

The impact of the Endangered Species Act on housing 
affordability and new construction varies widely throughout the nation, 
hi some areas of the country the only impact is due to the increase in 
lumber prices attributable to the listing of the spotted owl. hi other 
areas of the country multiple species listings can impact the 
development of a single piece of land. Because of variations in the 
impact of the Endangered Species Act, NAR's analysis of the impact on 
housing looks to three case studies. 

CASE STUDY 1 

Kit fox and Swainson's Hawk in San Joaquin County California 

Cost per Housing Unit 

kit fox survey required by the USFWS. $52.00 

Swainson's Hawk habitat mitigation fees 237.00 

Increase in traffic fee due to the implementation of the ESA on city, 

county and state projects (estimate) 500 00 

Increase in sewer fee due to the implementation of the ESA on city 

sewer plant expansion (estimate) 1 50.00 



Increase in water treatment fee due to the implementation of the ESA 

on city water plant expansion (estimate) 1 50.00 

Increase in water supply fee due to the implementations of the ESA 

on city purchase of water rights (estimate) 300.00 

Increase in storm drainage fee due to the implementation of the ESA 

on city storm dram system (estimate) 150.00 

Increase in aggregate costs due to the implementation of kit fox 

mitigation on aggregate suppUer (estimate) 25.00 

Increase in lumber costs due to the implementation of spotted owl 

mitigation on lumber prices (estimate) 3,500.00 

TOTAL: $5,064.00 

CASE STUDY 2 
Bald Eagle in Florida 

Cost per Housing Unit 
Survey of plant and animal Ufe (estimate) $50.00 

Cost of land for mitigation around nest site and flyway to the water (estimate) 3,000.00 
Increase in lumber costs due to the implementation of spotted owl 3,500.00 

mitigation on lumber prices (estimate) 

TOTAL: $6,550.00 

CASE STUDY 3 

Golden-cheeked Warbler in Travis County Texas 

Cost per Housing Unit 
Permit application fee $25.00 

Golden-cheeked warbler conservation fund payment 1,500.00 

Increase in lumber costs due to the implementation of spotted owl 3,500.00 

mitigation on lumber prices (estimate) 

TOTAL; $5,025.00 

Because of the localized impacts of endangered species regulations 
it is difficult to determine the impact on housing affordability. In some 
areas where only a small portion of the land is affected the cost may fall 
primarily on the landowner while the impact may fall primarily on land 
purchasers when the majority of the land is impacted. However 
increases in the price of housing due to higher lumber prices impact all 
homebuyers. The $3,500 increase in the price of a median priced new 



236 



home due solely to lumber prices would reduce the number of 
households who would qualify for a mortgage on a median priced single 
family home by roughly 1.8 million, based on currently prevailing 
mortgage rates and standard underwriting criterion. In any given year 
only about 4.5 percent of the population purchase a home so roughly 80 
thousand households would be priced out of the market. These numbers 
only consider the households that are priced out of the market due to 
payment constraints. Additional housholds would be priced out of the 
market due to the additional money required for the downpayment. 
These upfont costs often present a greater barrier to homeownership 
than monthly payments. This impact on homeownership would be even 
greater if job losses in the timber and construction industries are 
considered. 

WATER RIGHTS 

NAR's membership is very interested in the concept of water 
rights. It is our understanding that Congress may address this issue at 
some point. With that in mind, NAR's Water Rights policy is included 
for your review. 

The central question to a debate of this issue is simply stated; 
What is the proper federal role in water resource management*^ The 
NATIONAL ASSOCIATION OF REALTORS® opposes water 
allocation legislation at the federal level which supersedes state law and 
interstate water compacts and which may result in takings of water 
property rights without compensation. 

Water supply needs vary from state to state. Congress has 
traditionally deferred to the responsibility and expertise of the states for 
the allocation, administration, and use of water for residential, 
commercial, industrial, agricultural, municipal, recreational and aquatic 
life purposes. As a result, states have chosen their own water law 
systems in order to secure a stable and clean water supply to provide for 



I 



237 



sufficient food, drinking water, economic productivity, recreation and 
aquatic life. An extensive intrastate and interstate water supply 
infrastructure has been established based upon these state water law 
principles. 

We are concerned that federal initiatives to expand existing water 
pollution control programs in order to protect the ecological integrity of 
water bodies may go far beyond what is necessary to meet water quality 
needs. Overly restrictive requirements might impose economic burdens 
on landowners and industry perhaps without significantly improving 
water quality and in the process erode traditional state authority to 
determine land and water usage. 

NATIONAL ASSOCIATION OF REALTORS® WATER POLICY 

We support the wise use and management of our nation's water 
resources so that residential, commercial and industrial development, 
can proceed unencumbered in the fiiture. States water rights and 
regional customs, as they have developed over the years, should be 
considered by all levels of government. We also recognize the 
importance of a well-developed mfrastructure in ensuring adequate 
water quality and quantity. 

CONCLUSION 

NAR believes properly conducted programs of land preservation 
and historic preservation which attempt to protect aquifers, agricultural 
lands, wetlands, scenic vistas, natural areas, historic properties and open 
space may have a positive effect on the quality of life in towns, counties 
and municipalities. However, in establishing land use laws and 
regulations for the purpose of protecting these resources, the cost of the 
benefits of these programs to enhance our nation's resources should be 
paid for by the general public. Therefore, we believe that financial 
incentives should be developed for the protection of endangered species. 



238 



Current government real property acquisition practices have 
resulted in excessive amounts of private property being placed in the 
government estate. Federal property acquisition agencies have been 
authorized by Congress to acquire private property for parks, national 
forests, refuges and for other purposes, but have not been provided with 
the resources to promptly compensate landowners or adequately manage 
acquired lands. " ^ 

The Fifth Amendment of the United States Constitution states that 
private property shall not be taken for public use without just 
compensation. This premise was one of the fundamental building tenets 
of our nation and it should remain so today. 

The NATIONAL ASSOCIATION OF REALTORS® and the 
nation support an Endangered Species policy that is environmentally 
sensitive, yet allows our nation to be economically competitive. 

Thank you for the opportunity to express our views. 



WRITTEN TESTIMONY 

SUBMITTED TO THE U.S. HOUSE OF REPRESENTATIVES 

COMMITTEE ON RESOURCES 

ENDANGERED SPECIES ACT TASK FORCE HEARING 



STATEMENT BY: 

W. Mike Howell, Ph.D. 
Professor of Biology 
Department of Biology 

Samford University 
Birmingham, AL 35229 
Telephone (205)870-2943 



MAY 25, 1995 



240 



TESTIMONY OF W. MIKE HOWELL, PH.D. 

Chairman Pombo and distinguished Task Force members, it is my privilege to 
present testimony to you regarding scientific issues relevant to your consideration of 
possible revisions to the Endangered Species Act ("ESA"). Let me first establish for 
the Task Force my qualifications. I received the B.S. degree in Biology (1962), 
M. S. degree in Biology (1964), and Ph.D. degree in vertebrate zoology from the 
University of Alabama (1968). My major research field is Ichthyology. From 1972 
to 1974, I was Assistant Professor of Ecology & Systematics, as well as Curator of 
the Fish Collection, at Cornell University. Excluding my time at Cornell University, 
I have taught in the Biology Department at Samford University from 1966 until the 
present, i. e., 28 years. In addition, I served as Head or Chair of the Department of 
Biology at Samford for 12 years. My professional specialties are in the areas of 
taxonomy, systematics, ichthyology, vertebrate zoology and cytogenetics. During my 
professional career, I have written and published more than 50 peer-reviewed 
scientific papers. I have discovered and described three fish species new to science, 
including the first federally-listed endangered fish species unique to Alabama, the 
watercress darter, Etheostoma nuchale . in 1965. In addition, to working closely with 
the U.S. Fish & Wildlife Service ("FWS") on other issues over the years, I worked 
with FWS as the Recovery Team Leader for the Watercress Darter from May 1976 
until October 1982. For my work on the Recovery Plan for the Watercress Darter, I 
received a special commendation from FWS. Finally, I was a co-author of the first 
report on rare and endangered fishes in Alabama, in 1972, and several similar reports 
published subsequently. 

In case the above discussion does not make the point clearly enough, let me 
emphasize for the Task Force that I am staunchly committed to the identification and 
protection of endangered and threatened species, as well as to general principles of 
conservation ecology. For example, during 1991, I received U. S. Patent Number 
5,073,115 for the development of a special teaching-photographic tank in which 
students can place a live fish to study its taxonomy and characteristics without having 
to kill the fish by fixing it in formaldehyde. The fish is simply placed into the tank 
containing water from the fish's habitat. The structural design of the tank allows for 
the fish to be immobilized without harming it. The fish can then be studied by 
students and photographed before it is returned to its natural habitat unharmed. This 
tank grew out of nearly thirty years of my teaching ichthyology/vertebrate zoology to 
university students. It also grew out of my desire to save fish populations to be able 
to study them without the necessity of killing them in preservative solutions. 
Consequently, my opposition to the present way the ESA is applied is not based on a 
proactive "anti-green" philosophy. On the contrary, since 1976, I have been actively 
involved in FWS endangered and threatened listings of many fish species in the 
Southeast, particularly in Alabama. In most of those FWS proposals, I have supported 
the listing process. In my many years of active research and scientific study, I have 
actively opposed the proposed listing of only three species: the goldline darter, 
Percina aurolineata : the barrens topminnow, Fundulus julisia : and the Alabama 
sturgeon, Scaphirhvnchus suttkusi . My reasons for opposing those listing proposals 
were: the goldline darter was shown not to be endangered based on my own field 
work in the Little Cahaba River in Alabama; the barrens topminnow, found in 



241 



Tennessee, can be raised prolifically in laboratory aquaria as proven by culture 
methods developed in our laboratories at Samford University; and the Alabama 
sturgeon, because I believe it is conspecific (i.e., the same species) with the 
shovelnose sturgeon, Scaphirhvnchus platorvnchus . which occurs abundantly in the 
Mississippi River basin. 

The ESA Fails to Adequately Address and Assess Complex 
Biological and Taxonomic Issues 

It is my opinion that the ESA fails to adequately address and assess the complexities 
of many important biological issues, especially those related to taxonomic decisions. For 
example, if an individual or group wants to block a proposed project or industrial activity, it 
is common knowledge that they will often begin searching for an endangered species in the 
area. If none are found, they may search out a "green" taxonomist to fabricate a "new 
species" or subspecies from an already existing, named species. For example, they may 
select a population or population segment which is isolated from the main segment of a 
larger, more widely-distributed population of the same species. Because peripherally isolated 
population segments may have been geographically isolated for many years, the gene 
frequencies may have shifted slightly, and the species' meristic and morphometric characters 
may be slightly different from those of the main population. In some cases, these minor 
taxonomic differences may even be statistically significant. However, this does not 
necessarily mean that the two populations represent either a distinct species, a subspecies, or 
even a distinct population segment. This is because statistically distinct populations occur 
within most populations of all wide-ranging species; and, as any good field biologist knows, 
taxonomic characters are also plastic and often change from year to year and from habitat to 
habitat. For example, it has been shown in a mosquitofish population inhabiting a large lake 
that the taxonomic characters and gene frequencies may be slightly different in groups of 
mosquitofish found from place to place within the same lake. Each tiny cove can contain 
mosquitofish which have statistically different body shapes from other groups within that 
same lake. Even the number of fm-rays or scales may be statistically different between 
groups (demes) of fishes inhabiting the same lake, but living in different coves and habitats. 
However, this does not mean that these statistically distinct groups represent biologically 
distinct species. Fish populations constantly expand and contract. Migration and 
immigration of stray fish into and out of various populations have an inhibitory effect on 
speciation. 

Unfortunately, neither the ESA nor the FWS deals adequately with these complex 
biological issues. Indeed, seasoned taxonomists often have problems dealing with these same 
issues, and controversies arise even among different scientists. It is also unfortunate that 
some scientists will "discover" and describe a new species or subspecies simply because its 
taxonomic characters are statistically significantly different from those of the body of the 
main population. This is what the data indicate happened in the case of the so-called 
"Alabama sturgeon", Scaphirhvnchus suttkusi . Presently, I, along with three co-authors. Dr. 
Paul Blanchard, Dr. Alfred Bartolucci, and Dr. Robert Angus, have a 65 page manuscript in 
review at the professional scientific journal. Environmental Biology of Fishes . If this peer- 



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reviewed paper is accepted for publication, it will appear in an upcoming issue dedicated to 
papers dealing mostly with sturgeon conservation and biodiversity. The idea for this special 
issue grew out of the International Conference on Sturgeon Biodiversity and Conservation, 
which met in New York City during June or July 1994. In our paper, we have presented 
detailed evidence that we believe shows the Alabama smrgeon is the same species as the 
shovelnose sftirgeon, Scaphirhvnchus platorvnchus . which is abundant and widely-distributed 
throughout the Mississippi River basin from Montana to Ohio to New Orleans. 

Indeed, for over 90 years, the shovelnose sturgeon, Scaphirhvnchus platorvnchus . has 
been known to occur within the Alabama River system. However, just four years ago, in 
1991. two scientists named this peripherally isolated Alabama River basin population as a 
new species. The FWS immediately proposed to list it as endangered along with a proposed 
critical habitat designation involving many river miles on three rivers in Alabama and 
Mississippi. The proposed listing called for severe curtaibnent of river channel 
maintenance, gravel mining, dredging and hydropower production along the Alabama, 
Tombigbee and Cahaba rivers. This led to a head-on clash: the FWS versus the U. S. 
Corps of Engineers, state government agencies, and major Alabama and Mississippi 
businesses and industries. Despite hundreds of pages of scientific analysis and criticisms 
presented on the record regarding the validity of the designation of the Alabama sturgeon as 
a "new species", the FWS doggedly persisted for over three years in their efforts to list the 
fish in the face of overwhehning opposition from several reputable scientists, Alabama's and 
Mississippi's congressional delegations, seven southern governors, state government 
agencies, all major industries in Alabama, the U. S. Army Corps of Engineers, the 
Southeastern Power Administration, the U. S. Coast Guard, nearly all Alabama newspapers, 
thousands of Alabama citizens, and at least two scientists from the Department of Interior's 
own National Biological Survey, who performed DNA studies concluding that the Alabama 
sturgeon and the shovelnose sturgeon were genetically identical. Moreover, something in 
the ESA clearly needs to be changed when the FWS can use their unbridled discretion to try 
to prevent the gathering of additional scientific information that is crucial to the listing 
decision process. During December of 1993, in the middle of the listing process, FWS 
denied me and the Corps of Engineers scientists the oppormnity to examine the only live 
Alabama sturgeon which had been captured since 1985, but allowed those scientists 
"friendly" to the FWS the oppormnity to examine the fish and make counts, measurements, 
photographs and videotapes. Despite repeated requests, including those made by the 
Alabama congressional delegation. Corps of Engineers scientists and my colleague and I 
were not allowed to view the fish until eight days later, after the fish had died and was 
frozen. Even then, we were given only 15 minutes to make some 46 counts and 
measurements on the dead fish along with still photography, and we were even timed with a 
stopwatch. 

Through a subsequent Freedom of Information Act (FOIA) request, we later received 
and read a copy of a draft final listing document on the Alabama smrgeon written by FWS 
biologist, Mr. Richard Biggins, located in Asheville, North Carolina. In that draft 
document, Mr. Biggins agreed with us that the Alabama sturgeon was conspeciric (i. e., 
the same species) with the shovelnose sturgeon. However, for some reason, other higher 
level FWS personnel rejected his opinion and that draft fmal listing document never appeared 



3- 



243 



in the Federal Register . 

Lack of Scientific Checks & Balances in the ESA 

The ESA does not currently contain enough checks and balances. Many of the 
environmentally "green" taxonomists who describe "new species" by the unnecessary 
splitting of wide-ranging species into separate species or subspecies, submit their manuscripts 
to friendly "green" editors, who in turn pass the manuscripts on to friendly "green" peer- 
reviewers. Often, the entire cast of scientists involved in such a scenario either have 
received funding from, or are being presently funded, by the FWS to do various research or 
study projects or status reviews or surveys. I have known of a FWS field biologist who has 
actually encouraged some of the "green" taxonomists to describe a population just so FWS 
could list it as endangered. Unfortunately, a "good-old buddy" system has often existed 
between many so-called "independent" scientists and certain FWS officials. For example, 
out of the nine scientists selected by the FWS to form a panel to review the science on the 
Alabama snirgeon, at least eight of those scientists, or their laboratories, had received or 
were receiving funds from the FWS, and several of the nine scientists had already publicly 
committed themselves in the press and other newsmedia as supporting the listing of the 
Alabama sturgeon and the position of the FWS before they were selected for the panel. 
Despite numerous objections, the FWS forged ahead with their panel of admittedly biased 
scientists. In an effort to obtain a more balanced panel, the Alabama congressional 
delegation provided FWS with the names of several eminent scientists who had no prior 
connection with the Alabama sturgeon and who were recognized experts in this scientific 
area. However not a single one of those scientists was chosen by FWS to serve on the 
scientific review panel. To make matters worse, no one other than FWS officials were 
allowed to attend the closed-door meetings of the FWS-selected sturgeon review panel. How 
can the citizens of Alabama and Mississippi, business and industry, other federal and state 
governmental agencies and other interested and involved scientists have an opportunity to 
participate in a scientific review panel process such as this when the whole process, from 
beginning to end, can be controlled entirely by FWS and their friendly scientists? The ESA 
must be changed to ensure fair representation for all scientific viewpoints, without having to 
resort to redress in the courts. 

The ESA and Inadequate Science 

Based on my experience, many of the proposed endangered species listings are not 
based upon adequate science. Traditionally, there has been a poor fit between science and 
the proper implementation of the ESA. The FWS has historically had a tendency to vastly 
overstate the ecological impacts, which supposedly have resulted from and/or will be caused 
by myriads of human activities. For example, on August 3, 1994, the FWS proposed in the 
Federal Register to list five species of mussels as endangered and two as threatened in 
southeast Alabama and southwest Georgia. FWS' listing proposal stated that the, "Factors 
contributing to the habitat loss are: impoundments and deteriorating water and bottom 
habitat quality resulting from channel modification, siltation, agricultural runoff from crop 
monoculmre and poultry farms, silviculture activities, mining activities, pollutants, poor land 
use practices, increased urbanization, and municipal and industrial waste discharges." Such 
an all-encompassing listing statement has the potential not only to affect navigation but also 



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the timber industry, gravel mining operations, all municipalities and industries along the 
waterway, fanners, poultry industry, flood control, hydroelectric power, and a host of other 
human activities. Under the ESA, as it currently exists, this kind of proposal can be 
published by FWS in the Federal Register often without a shred of scientific evidence to 
support such conclusions. In actuality, runoff from crop monoculture and poultry farms 
may even fertilize the water, stimulating bacterial and algal growth; and, these increased 
nutrients might even be good for mussel growth and reproduction. This is purely conjecture 
of course, but it is as valid as PWS blindly assuming that runoff from crop monoculture and 
poultry farms is always detrimental to mussels. Who prevents the FWS from utilizing 
such woefully inadequate science? The answer is: no one. The FWS has often adopted a 
"Chicken Little" approach in writing their listing regulations. Solid supporting science and 
the elimination of conjecture throughout all stages of the listing process are prerequisites to 
developing a good recovery plan and avoiding unnecessary adverse impacts of economic and 
human activities. Thorough, comprehensive, un-biased scientific peer review should be done 
by truly independent peer reviewers who have neither a vested interest in the species in 
question nor are dependent upon FWS dollars for their professional development and well- 
being. Congress should also require that in preparing listing proposals and final rules FWS 
must be specific about exactly what human activities are actually harmful to the species, and 
FWS should be required to document any alleged "harmful" impacts with solid, verifiable 
research data and literature citation. We realize there will never be "perfect science" and not 
always 100% complete scientific research, but that does not excuse the use of "shoddy 
science" or conjecture in the decision process, as I have seen FWS do on several occasions. 
I have reviewed many FWS proposed endangered species listings during my career—some 
with excellent documentation and validity, some with borderline merit, and some that were 
woefully inadequate from a scientific standpoint. My most recent and extensive involvement 
has been with FWS* proposal to list the Alabama sturgeon. A summary of our findings in 
that particular case are as follows: 

1. The taxonomy was incomplete and insufficient to support an endangered 
listing; 

2. The scientists involved misused the statistical data in the original description of 
the Alabama sturgeon to improperly designate it as a separate species; 

3. FWS overstated the alleged adverse impacts of man's activities on the 
sturgeon; and, 

4. FWS used conjecture rather than solid verifiable science to support its 
conclusions. For example, FWS said that a continuous minimum water flow 
of 3,000 cubic feet per second was needed for the Alabama sturgeon to 
survive. We questioned FWS about where they came up with the figure of 
"3,000 cubic feet per second". A FOIA request document ultimately showed 
the F>\'S had no data to support its conclusion, and they admitted that this 
flow rate requirement was merely their "best guess" for what the fish might 
need. 



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The ESA should be changed to prevent FWS from using such "best guess" procedures. 
Conjecture is not adequate in our modem world where field data are cheaper to obtain than 
unnecessarily spawning a fight of the magninide of the Alabama sturgeon controversy, which 
cost industry and government hundreds of thousands of dollars to challenge. 



Reconunendations to Remedy Specific ESA Problems 



1. Ensure that solid independently verifiable scientific data, including DNA 
analysis, is used in original species descriptions; 

2. Ensure that species status reviews and surveys are also based on accurate 
independently verifiable scientific information; 

3. Ensure that representatives from other government agencies, business and 
industries which might be impacted by an endangered species listing are 
guaranteed an opportunity to participate in the listing process 

from the time of "candidacy" or a "petition to list" is submitted to FWS until 
the final decision on the listing proposal is made; 

4. Enlist the services of truly unbiased and independent scientists to review the 
overall listing process and require them to present their peer reviews to other 
interested scientists and representatives from state and local 
governments, affected businesses and industries, as well as IWS before the 
final decision on the listing proposal is made; 

5. Ensure that the FWS no longer relies on science produced by the "good-old 
buddy" system that just happens to have been peer-reviewed. For example, 
there are several described species whose names were published in peer- 
reviewed journals; however, those are no longer recognized by taxonomists as 
being separate species even though those species have not yet been officially 
synonymized; 

6. Develop a more iron-clad, more specific defmition of "species"; and, 

7. Provide a process whereby scientific questions (especially questionable data 
being used by FWS), could be subjected to and adjudicated by some higher 
authority or panel to inject fairness and "due process". 



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Conclusion 
It is obvious that the ESA should be changed to ensure that independently veriFiable 
scientific data is used in listing decisions and in the development of species recovery 
plans. 

I would like to express my appreciation for the opportunity to present this testimony. I 
would be happy to supplement this testimony if the Task Force so desires. 



W. Mike Howell, Ph.D. 
Professor of Biology 
Department of Biology 
Samford University 
Birmingham, AL 35229 
Telephone (205)870-2943 



I have reviewed the above testimony and based on my experience as a professional biologist 
apd with the Alabama sturgeon proposal, I concur with Dr. Howell's testimony. 



Paul D. Blanchard, Ph.D. 
Assistant Professor of Biology 
Department of Biology 
Samford University 
Birmingham, AL 35229 
Telephone (205)870-2568 



247 



WRITTEN TESTIMONY 

SUBMITTED TO THE 

U.S. HOUSE OF REPRESENTATIVES 

COMMITTEE ON RESOURCES 

ENDANGERED SPECIES ACT TASK FORCE HEARING 



SUBMITTED BY 

TERRY D. RICHARDSON, Ph.D. 

Assistant Professor of Biology 

AND 
PAUL YOKLEY, JR.. Ph.D. 
Emeritus Professor of Biology 

Department of Biology 

University of North Alabama 

Florence, Alabama 35632-0001 

(205) 760-4429 



May 25, 1995 



248 



TESTIMONY OF 

DR. TERRY D. RICHARDSON 

AND 

DR. PAUL YOKLEY, JR. 



Mr. Chairman and distinguished Committee Members, it is a privilege to present to you 
our professional views on the Endangered Species Act of 1973, as amended, and its current 
application. 

Terry Richardson is an Aquatic Ecologist, Director of the Rare and/or Endangered 
Species Research Center, and Assistant Professor of Biology at the University of North Alabama 
located at Florence, Alabama. Paul Yokley, Jr. is a raalacologist, retired Professor of Biology 
(also from the University of North Alabama) and founder of the Rare and/or Endangered Species 
Research Center at the University of North Alabama. As a routine part of our professional 
endeavors, we are continually involved with activities related to the preservation of rare, 
threatened or endangered species. We work closely with federal, state and private agencies on 
issues of endangered species recovery, relocation, surveys, habitat assessment, and proposed 
listings. As such, we are familiar with the implementation of the Endangered Species Act by 
the U.S. Fish and Wildlife Service and the U.S. Department of the Interior. We are presenting 
this testimony in order that our cumulative experience, as well as our professional opinions, may 
be considered by this committee during its review of the Endangered Species Act. 

While all parties involved believe that preservation of species and habitat is a high 
priority, the perceived inequities of the Endangered Species Act have placed the Act under 
intense scrutiny by the industrial and private sectors. Industries are concerned with land and 
waterway application issues, and management and maintenance costs encountered when species 
are listed. Similarly, private landholders are concerned with how listing species limits their 
rights of ownership and land usage. 

The numerous proposals submitted by the U.S. Fish and Wildlife Service to list species 
under the Endangered Species Act and the concomitant recovery plans have become the focus 
of listing issues primarily because of their potential economic impacts. As cases-in-point, we 
cite the concerns surrounding the two recent proposals for listing the so-called Alabama sturgeon 
and the listing of seven mussels in the Apalachicolan Region. 

There are two critical issues we find in need of examination in any review of the current 
Endangered Species Act. First is the lack of an independent peer-review process for U.S. Fish 
and Wildlife Service's listing proposals. Second is the recovery plaiming process for listed 
species. 

Because listing species under the Endangered Species Act is predicated on using the " . . . 
best scientific and commercial data available" and because listings are to be ". . .as accurate 
and as effective as possible," we are concerned that the Endangered Species Act does not 
currently address the scientific review of status surveys and the ensuing proposals upon which 



249 



species listings are based. Because these scientific reports are used to implement law, their 
preparation and, more importantly, their review should be explicitly governed by language in 
the Endangered Species Act. 

The scientific community as a whole has a rigorous peer-review process through which 
all published scientific works, large or small, must pass. While there are numerous versions of 
this process, all share a common procedure. First, manuscripts are prepared that contain an 
introduction to the study, a detailed materials and methodology section, a results section 
providing readers with essential summary data sufficient to judge the scientific validity of 
conclusions, a discussion of the author's conclusions regarding the data, and a bibliography. 
Next, the completed manuscript is submitted to a senior editor who is typically not associated 
with the author's institution. The editor will then select two or more anonymous expert 
reviewers to critically examine the document for accuracy, adherence to sound scientific 
practices and ethics, and validity of results and conclusions. The reviewers' comments and 
conclusions are sent back to the senior editor who, with the benefit of all reviews, will make a 
decision regarding the publication stams of the manuscript. Very often scientific works are 
rejected for publication, because they do not satisfy the standards of the reviewers and review 
process. Some works, however, will be accepted for publication, but only after the author 
addresses some specific concerns of the reviewers and editor. 

The scientific community has voluntarily subjected itself to such a rigorous set of checks 
and balances to ensure that only the best, most accurate and reliable scientific information will 
be released for general use and application. The U.S. Fish and Wildlife Service, however, is 
not required to submit their listing proposals and status surveys to the peer-review process under 
the current Endangered Species Act. This inadequacy is compounded when one considers that 
the results of the U.S. Fish and Wildlife Service's activities can take on the force of law with 
serious environmental and economic consequences. 

The current process of publishing proposals in the Federal Register and inviting 
comments from interested parties is inadequate at best and does not address the issue of having 
a peer-review process in place to ensure good and accurate science. Most of the reviews a 
proposal receives are by other U.S. Fish and Wildlife Service personnel, and such internal 
"friendly" reviews are often subject to bias. Also, independent external experts who are 
qualified to review a listing proposal rarely read the Federal Register : consequently, they are 
not aware of the proposals that appear there. Furthermore, for those scientists who are aware 
of listing proposals in the Federal Register , there is often not enough detail on methodology or 
inadequate data provided in the published proposal to give a reviewer sufficient information to 
judge the scientific merit and soundness of the proposal. As a case-in-point, we again refer to 
the Service's proposal to list seven mussels as threatened or endangered in the Apalachicolan 
Region published in the August 3, 1994 Federal Register . Information critical to assessing the 
validity of the proposed listing was simply not available in the Federal Register document. 
Finally, because the published proposal is the document used by the Secretary of the Interior to 
make a decision on the listing, the request for comments comes at the wrong stage of the 
process. To ensure that only the best available scientific data are used to make a decision on 



250 



listing, the peer-review process should come before the proposal is published in the Federal 
Register . Essentially, it is the status survey upon which a proposal is based that should be 
subjected to a vigorous independent peer review. 

Currently, when the U.S. Fish and Wildlife Service does request review of a status 
survey, it is distributed among fellow federal agencies and a handful of other interested persons. 
The Fish and Wildlife Service has also recently adopted a policy of seeking comments from 
experts when a proposal encounters substantial scientific criticism. However, even this recent 
change is solely voluntary on the part of the Service and is not required under the current 
Endangered Species Act. In addition, the active solicitation of reviews and comments comes 
only after sufficient questions have been raised concerning the science upon which the proposal 
was based. Again, we refer to the proposed listing of seven mussels in the Apalachicolan 
Region. Requests for external review by experts of the science were not made until January 3, 
1995, fully five months after the proposal appeared in the Federal Register and over one month 
after the public comment period was originally scheduled to close. This is not acting within 
either the spirit or intent of the scientific peer-review process. The current practice of the U.S. 
Fish and Wildlife Service requesting reviews after the proposal has been published is clearly a 
case of putting the proverbial cart before the horse. Because of this, much of the U.S. Fish and 
Wildlife Service's work is being met increasingly with skepticism and criticism from not only 
the industrial and private sectors, but the scientific community as well. 

Concerns about the proposal process are compounded by current internal editorial 
practices of the U.S. Fish and Wildlife Service. Draft proposals submitted for publication in 
the Federal Register are subjected to editorial changes in content and scientific conclusions 
without the author's consent or knowledge. In the proposal to list the seven mussels in the 
Apalachicolan Region, there is documentation in the record that the U.S. Fish and Wildlife 
Service's internal editors made substantial changes and deletions to text in the draft proposal. 
The result of those editorial changes subsequently appeared in the Federal Register without the 
author's knowledge or approval. Those editorial revisions altered the scientific conclusions 
drawn by the author. Such a practice is unheard of in the scientific community. This type of 
editorial license used within the U.S. Fish and Wildlife Service is scientifically unacceptable and 
verges on being unethical. Taking such liberties with editing when the author's consent has not 
been sought and when no peer-review process is in place only serves to exacerbate growing 
criticisms and skepticism of the listing process. 

It is our professional opinion that any revision of the Endangered Species Act should 
tiKlude a mandatory, external, independent, and anonymous peer review of both the status 
survey and the listing proposal. This process should be rigorous and require standards that 
would meet with the approval of the scientific community as a whole. Furthermore, the status 
survey document should conform to the same basic content requirements as other scientific 
manuscripts. In addition, the Service should not make any substantial changes to a draft 
proposal submitted for publication in the Federal Register without first obtaining the author's 
approval. 



251 



By requiring such a process, all parties involved in a listing proposal would benefit. The 
U.S. Fish and Wildlife Service would receive valuable input and criticism from outside scientists 
which could be used continually to improve their scientific efforts. The Service would also 
benefit by meeting with fewer challenges once the proposal has been published. Industrial and 
private concerns would profit by having only the best, rigorously scrutinized scientific data used 
in preparing a proposal for listing. Both the economy and the environment would gain by 
ensuring that species that are threatened or endangered are indeed listed while at the same time 
validating that only those truly in need of protection are listed. Finally, taxpayers would benefit 
from having in place a process of checks and balances that makes those conducting the science 
accountable to the scientific community for their activities. 

Also of critical concern to us are the recovery plans for listed species currently required 
by the Endangered Species Act. These plans, when implemented through Section 7 consultations 
or Section 10 habitat conservation plans, often require substantial financial input and/or sacrifice 
from those who own, control or utilize the habitat. As a result, recovery plans, in essence, are 
nothing more than unfunded federal mandates applied via the Endangered Species Act. It is 
ultimately left up to the state and local taxpayers, and industrial and private concerns to cover 
the costs of recovery plan implementation. 

Most species are proposed for listing with no recovery plan in place or even proposed. 
In some instances there is insufficient information on the biology of the proposed plant or animal 
to allow adequate recovery plans to be drawn up. As a case in point, we again refer to the 
Apalachicolan Region proposed mussel listing. By the U.S. Fish and Wildlife Service's own 
admission, little is known about the life cycle and reproduction biology of the seven mussels 
which have been proposed for listing. Noted scientific experts in the field, however, are in 
agreement on the futility of conservation efforts without this type of essential biological 
information. 

Species are also routinely listed for which the recovery plan amounts to little more than 
a preservation or subsistence measure. Too little time, effort, research, and money is available 
during the critical period following listing to truly implement recovery of the species. Listing 
a species without concomitantly and quickly implementing a realistic, knowledgeable recovery 
plan doesn't really benefit the species. Little can be gained by listing a species if we are simply 
prolonging the inevitable-especially when economic hardship accompanies the listing. 

It is our belief that any revision of the Endangered Species Act should include required, 
comprehensive, federally-funded, recovery plans and/or studies, as needed, if a species is to be 
listed as threatened or endangered under the Endangered Species Act. Such smdies and plans 
should include a listed species' specific requirements for recovery, conclude whether or not a 
species will ultimately recover if the proposed recovery plan is implemented, and specify what 
steps are necessary to implement such a successful recovery. Only by providing sufficient 
funding can we guarantee that true recovery of a protected species will be realized, along with 
the preservation of biological diversity as is the true intent and spirit of the Endangered Species 
Act. Such a revision would benefit the U.S. Fish and Wildlife Service and the environment by 



252 



ensuring adequate levels of funding to implement successful recovery of a listed species. 
Industry and state and local economies would benefit not only from having species preservation 
and recovery, but also from not having to shoulder the financial burden of recovery plan 
implementation. 



We believe that the preservation and protection of species is required to 
biological diversity for both posterity's sake and for ecological stability. We believe, however, 
that the Endangered Species Act, as written, suffers from a lack of checks and balances, and 
fi-om insufficient follow-through on species recovery. Addressing these areas as the Endangered 
Species Act is revised will serve only to strengthen the integrity of the Act and ensure that the 
Act's intentions are fully met. It will serve favorably all parties involved in the listing of a 
species as threatened or endangered under the Act~from the U.S. Department of the Interior, 
environmentalists and scientists, to local taxpayers, businesses, industries and landowners. 



Terry D. Richardson, Ph.D. 
Assistant Professor of Biology 

and 
Paul Yokley, Jr.. Ph.D. 
Emeritus Professor of Biology 
Department of Biology 
University of North Alabama 
Florence, Alabama 35632-0001 
(205) 760-4429 




United States Department of the Interior 



OFFICE OF THE SECRETARY 
Waihington, DC. 20240 



Honorable Richard Pombo ini 2 ft 1995 

Chairman 

Endangered Species Act Task Force 

Committee on Resources 



U.S. House of Representatives 
Washington, D.C. 20515 



Dear Chairman Pombo: 



This responds to your May 31, 1995, letter requesting answers to 
questions regarding the Endangered Species Act for the 
consideration of the Committee on Resources. A reiteration of 
the questions and our answers are enclosed. You also requested 
the names of several individuals involved in the peer review 
process of the listing of the fairy shrimp. Their names and 
affiliations are: 

Dr. Marie Simovich Professor at University of California in 
San Diego 

Dr. Richard Brusca San Diego Natural History Museum 

Dr. Bob Holland Independent consultant - World 

recognized vernal pool specialist 

Jamie King Doctoral graduate student at University 

of California at Davis 

Dr. Denton Belk Adjunct Professor of Biology at Our Lady 
of the Lakes University at San Antonio, 
Texas 

All five reviewed the proposed rule for the listing and provided 
comments that were incorporated into the final rule. 

If I can provide any additional assistance, please contact me 
again. 



rely, ^^ 



Sinoertre 

George T. Frampton, Jr. \ 
Assistant Secretary for 
Fish and Wildlife and 
Parks 



Enclosure 



92-551 - 95 - 9 



254 



Questions for the Honorable Bruce Babbitt, Secretary, U.S. 
Department of Interior from the Honorable Richard Pombo, 
Chairman, Endangered Species Act Task Force. 

QUESTION 1. We have observed as we have conducted our hearings 
throughout the country that the Endangered Species Act has not 
been implemented uniformly and consistently on a national basis. 
Have you made an effort to insure that your Department's policies 
are consistently inplemented so that every region is treated the 
same? 

ANSWER: The Service has always strived to uniformly and 
consistently implement the Endangered Species Act (Act) on a 
National basis. The circumstances that involve the biological 
needs of one or more listed species in conjunction with specific 
projects often require new solutions, and this may lead to the 
perception that the Service's implementation of the Act is not 
consistent or uniform. 

However, the Service also realizes it is essential that the Act 
be consistently and uniformly implemented. To that end, the 
Service, in conjunction with the National Marine Fisheries 
Service, has many guidance documents under development for use on 
a national basis. These include the following: 

Draft Petition Management Guidance - under the Act, any 
citizen has the right to petition the Service to list or 
de-list species. This working draft guidance would 
ensure that petitions are considered in a uniform and 
consistent manner throughout the Nation. 

Draft Candidate Assessment Guidance - working draft 

guidance on how the Service will assess candidate species 
is being tested in all offices with listing 
responsibilities. 

Listing guidance - the second edition of this guidance was 
finalized last year and is being used throughout the 
Service to ensure that listing decisions are made based on 
sound scientific and commercial data. 

Draft Vertebrate Population Policy - provides the 

Service's definition of a "distinct population segment of 
any species of vertebrate fish or wildlife" for the 
purposes of listing, delisting, and reclassifying species. 

Draft Interagency Consultation Guidance - would ensure 
that the Section 7 consultation process will be 
implemented in a consistent fashion among all agencies and 
nation-wide. 

o Recovery Planning and Coordination Guidance - provides a 
process for the development of recovery plans, 
establishment of recovery targets or goals, and the 
implementation of recovery tasks. 

Draft Habitat Conservation Planning Guidance - would 
ensure that applicants for Section 10(a)(1)(B) permits, 
the permits that result from the Habitat Conservation 



255 



Planning process, will be treated in a consistent and 
uniform manner by all Service offices and the process will 
be streamlined to the greatest extent possible. 

In addition, the Service is now working under a number of 
policies that were finalized with the National Marine Fisheries 
Service (KMFS) in 1994. These joint policies detail how the 
Service will work in closer partnership with the States, when and 
how the Service will seek peer review of appropriate activities, 
how the Service will ensure the best scientific and commercial 
data are used when making decisions, how the Service will 
minimize social and economic impacts in recovery planning through 
broad participation and how the Service will endeavor to use an 
ecosystem approach in endangered species activities. In 
addition, a July 1994 policy stipulated that the Service will, to 
the extent practicable, at the time a species is listed, identify 
activities that would or would not likely constitute illegal take 
under the Act. 

More recently, a policy was developed that ensured private 
landowners will be treated equally and fairly when entering into 
Habitat Conservation Planning agreements with the Service. This 
"No Surprises" policy helps ensure that once landowners have 
signed an agreement, the Service will not require additional land 
or financial compensation in the future. 

Finally, the Administration's package of improvements to carry 
out the Endangered Species Act, often called the "Ten Point 
Plan," will ensure that the Act is implemented in a fair, 
efficient, and scientifically sound manner. These improvements 
build on the existing law to provide effective conservation of 
threatened and endangered species and fairness to people through 
innovative, cooperative, and comprehensive approaches. 

QUESTION 2. Many citizens have described to us a Fish and 
Wildlife Service that is rude, arrogant, unresponsive, 
indecisive, unfair, and overreaching. Bow can an individual 
citizen who feels that they have been mistreated seek redress 
within your agency? 

Answer: The Service always endeavors to treat all citizens in a 
fair and courteous manner. Any person who feels they have been 
treated in a less than fair or courteous manner should request 
the name and phone number of the Field Supervisor or Regional 
Director and explain the problem to that person. The appropriate 
management personnel will review the situation and ensure that no 
Service employee has acted in a less than professional manner. 

QUESTION 3. There have been many criticisms raised zJoout the 
credibility of the listing process. Please provide the conmittee 
with a concise description of the listing process, including: (a) 
how it works, (b) how decisions are made, (c) the timing of 
decisions, (d) who makes decisions, (e) what decisions include 
public input, (f) what data used in making the decision is 
available to the public and what is not, (g) what individuals or 
groups are consulted, and (h) what avenues are available for 
appeal of listing decisions by those who support the listing and 
those who oppose it. 



256 



Answer: 

Bow are species listed? A species is proposed for addition to 
the endangered or threatened species lists through publication of 
a proposed rulemaking in the Federal Register ; comments are 
solicited from the general public (typically a 60-day comment 
period) . In addition, to ensure that the specific public that 
may be affected or may have special interest in the proposal 
(e.g., landowners in the geographic area of the species) are 
aware of the action, notifications are published in local 
newspapers and, possibly, announcements are made through other 
media. Specific landowners may be personally contacted by the 
Service. Any member of the public may request a public hearing. 
Also, in accordance with Service policy, peer review of the 
proposal is requested from at least three individuals. The 
Service takes very seriously its obligation to base decisions 
under the Act on the best scientific information available, 
recognizing that our knowledge of the natural world is 
incomplete, and that research adds to our knowledge base. 

After the Service analyzes public input and all available 
scientific and commercial information, the final rulemaking (as 
proposed or revised) or notice of withdrawal of the proposal is 
published in the Federal Register , within one year of publication 
of the proposed rule. 

Usually, species are recommended for listing or de-listing, with 
supporting information, at the field office level; the biology is 
reviewed and conformity to Service policy is checked at the 
Regional Office; and national consistency is approved and 
biological factors substantiated in the Washington Office. The 
Director of the Service makes the final decision on proposed and 
final listing of species, except in certain cases (e.g., critical 
habitat) where the Assistant Secretary for Fish and Wildlife and 
Parks has signature authority. 

Selecting candidates for listing: Species are selected by the 
Service for proposed listing from a list of candidate species. 
The Service develops candidate lists from petitions. Service and 
other agency surveys, and other biological field studies, 
reports, and publications. 

Species to be listed in a given year are basically selected from 
among those recognized as Category 1 candidates in accordance 
with the Service's listing priority system. Category 1 
candidates are those for which the Service has substantial 
information on biology and threats to support the proposal to 
list. Under the priority system, species facing the greatest 
threat are assigned highest priority. Other criteria account for 
the immediacy of the threat and the genetic distinctness of the 
species as reflected by the taxonomic level at which it is 
recognized. For example, a species with a high magnitude of 
threat, imminent immediacy of threat, and where representing a 
monotypic genus, would be assigned a priority ranking of "1" (the 
highest priority for listing) . Conversely, a species with 
moderate to low degree of threat of a non-imminent nature at the 
subspecific taxonomic rank would be assigned a priority of "12" 
(the lowest priority) . 



257 



Petition process: Anyone may petition the Service to list, de- 
list, or reclassify a species to endangered or threatened. 
Within 90 days of receiving a petition, the Service must make a 
finding as to whether the petition presents substantial 
information that listing and delisting may be warranted. A 
notice of the finding is published in the Federal Register . If a 
positive finding is made, the Service must initiate a review of 
the status of the species (e.g., review of literature, 
communication with experts, and review information in Service 
files) . 

Within 1 year of receipt of a petition for which a positive 90- 
day finding is made, a finding is required as to whether the 
petitioned action is warranted or not warranted. A finding of 
warranted must lead to a proposed listing within 3 days, under 
Service policy, unless the Service finds that immediate proposal 
is precluded by higher priority listing activities. In order to 
make a warranted but precluded finding, the Service must also 
show expeditious progress in its overall listing program (e.g., 
candidates of higher priority are being treated first) . Any 
warranted but precluded finding must be re-examined on each 
successive anniversary of the petition's receipt until the 
species is proposed or the petition is found to be not warranted. 

Between 1990 and 1993, the Service received a total of 206 
petitions to list U.S. species. As of March 1995, findings had 
been made for 183 of these as follows: 141 (77%) were turned 
down at either the 90-day or 12-month stage; 42 (23%) were found 
to warrant listing. 

Negative 90-day findings, not warranted findings, and warranted 
but precluded findings are subject to judicial review. 
Individuals may challenge listing decisions for alleged 
substantive or procedural violations of section 4, or by filing 
suit against the Service or Department of the Interior for 
failure to meet the statutory time-frames of the Endangered 
Species Act. 

Criteria for listing: A species warrants protection under the 
Act if it meets the definition of either "endangered" or 
"threatened" in the Act. An "endangered" species is one that is 
in danger of extinction throughout all or a significant portion 
of its range. A "threatened" species is one that is likely to 
become "endangered" within the foreseeable future throughout all 
or a significant portion of its range. The following factors are 
considered when assessing whether a species is endangered or 
threatened: 

the present or threatened destruction, modification, or 

curtailment of its habitat or range; 

over-utilization for commercial, recreational, scientific, 

or educational purposes; 

disease or predation; 

the inadequacy of existing regulatory mechanisms; or 

other natural or man-made factors affecting its continued 

existence. 

By law, listing decisions must be based solely on the best 
available scientific and comnercial (trade) data. 



258 



How affected interests are involved in the listing process? 
As part of the listing process, the Service's regional and field 
offices are responsible for contacting involved or affected 
local, State, and Federal agencies, affected or interested 
conservation or industry groups, and biologists or scientific 
groups interested in and/or knowledgeable about particular 
species. The Service also makes efforts to contact any 
potentially affected landowners. Contact with interested or 
knowledgeable parties is generally initiated at the time a 
Service field office begins to prepare a proposed rule. This 
pre-proposal coordination is intended to (1) advise parties that 
the Service is considering taking a particular regulatory action, 
and (2) request information. 

Once a proposed rule is published, the Service issues news 
releases and special mailings — sometimes to hundreds of parties — 
directly informing the scientific community. Federal and State 
agencies, and major landowners. The Service also publishes a 
summary of the proposal as a legal notice in newspapers serving 
each area in which the species is believed to occur. Where 
public interest is great, or when requested (within 45 days of 
proposed rule publication) , the Service holds public hearings. 
Information received at public hearings and during the public 
comment period is analyzed and considered in the final rulemaking 
process. 

QUESTION 4: There have been criticisms that mistakes are 
sometimes made in listing a species that should not cpialify for 
listing and correcting that mistake is extremely difficult. 
Please outline those steps you take to insure that mistakes are 
not made, to correct mistakes when they are made and the process 
for delisting, including: 

(a) how delisting decisions are made, 

(b) who makes the delisting decisions, 

(c) the timing of delisting decisions, 

(d) what delisting decisions include public input, 

(e) what data used in the decision is availaO^le to the public 
and what is not, 

(f) what individuals or groups are consulted, and 

(g) what avenues are available for appeal of delisting decisions 
by those who support the delisting and those who oppose it. 

Answer: A species is removed from the Lists of Endangered and 
Threatened Wildlife and Plants if the Service substantiates that 
it is neither endangered nor threatened. Removal must be 
supported by the best scientific and commercial data available 
after conducting a thorough status review of the species. 
Delisting can occur if the data support that the species is not 
endangered or threatened due to: 

* extinction of the species; 

* recovery of the species to the point where it no longer 
needs the protection of the Act; or 

* new data or reinterpretation of the data which indicates 
that the classification was made in error. 



The Service generally waits for a period of time before removing 
a species from the list if it is suspected of being extinct. 
This leaves protections in place in case additional populations 
are found. Species feared to be extinct that were later 
rediscovered include the black-footed ferret and the Palos Verdes 
blue butterfly. Most of the species that were delisted due to 
extinction are believed to have become extinct before they were 
protected under the Act. 

The principal goal of the Service in implementing the Act is to 
return listed species to a point where protection is no longer 
required. After listing, recovery plans are developed. Many of 
these plans contain specific goals for the species that can 
trigger reclassification to threatened status, or delisting. 

When making a listing decision the Service uses the best 
scientific and commercial data available. However, the Service 
is open to new information as it becomes available. New 
populations may be discovered or issues may arise about taxonomy. 
In a few cases, this new information has been sufficient to de- 
list a species. 

Whatever the reason for delisting, the process is similar to the 
listing process (see response to question number 3) . A proposed 
rule for delisting is developed by a regional or field office. 
If approved by the Director, this proposed rule is published in 
the Federal Register . Public comment on the proposal is 
requested and peer review is requested by at least three 
individuals. After reviewing the status of the species, 
conferring with the States and others, and thoroughly reviewing 
comments on the proposal, the Service may prepare a final rule to 
de-list the species. The Director of the Service makes the final 
decision on delisting, but the process includes the public, the 
States, other agencies, and all levels of the Service. Comments 
on the proposal — both supporting and opposing — are addressed in 
the final decision document ( final rule or withdrawal notice) 
which is also published in the Federal Register . 

The proposed and final rules summarize the data used for 
determinations. A bibliography of the studies referenced is 
included in the rule or, if lengthy, is available upon request. 
The administrative record upon which listing and delisting 
decisions are made is available for public review in the 
appropriate field, regional, or Washington, D.C. offices. 

There are ample opportunities to provide input into the process 
by commenting and/or requesting a public hearing. The public can 
also provide its opinion through the petition process by 
petitioning the Service to de-list or to relist a delisted 
species if they provide significant new information. 

As of March 31, 1995, seven species had been delisted because 
they are deemed extinct, seven had been delisted due to recovery, 
and eight had been delisted because current information indicates 
the classification was made in error. Certain populations of the 
gray whale and the brown pelican also have been delisted. The 
American alligator, although recovered, remains on the 
"similarity of appearance" list to facilitate law enforcement for 
endangered crocodilians such as the American crocodile. 



260 



QUESTION 5. What role does peer review currently play in 
insuring the integrity of scientific decisions that must be made 
by the Department of the Interior? Does the Department have any 
recoitmendations for inproving the peer review process in future 
legislation? 

Answer: The Service makes it standard practice to subject 
Service decisions to independent expert review. Decisions on 
information regarding a species' range, abundance, status, and 
threats that may be present are made subsequent to either formal 
or informal review by experts in the field. Often these experts 
are employed by colleges or universities, work for other Federal 
or State agencies, or may be working in some other Division 
within the Service. Likewise, a wide range of experts are 
consulted when writing Recovery Plans for species. Specialists 
are usually consulted on complex Section 7 biological 
consultations, to ensure that the best information on species' 
natural history is known. Many consultations involve areas of 
science outside of the Service's expertise - such as the 
operation of dams to maintain constant water discharge rates - 
and specialists in these specific areas are constantly polled for 
information and opinions. 

To reinforce the consistent manner in which the Service seeks 
peer review of decisions, the Service issued a July 1994 policy 
that specifically addresses the issue. Independent peer 
reviewers should be selected from the academic and scientific 
community, Tribal and other native American groups. Federal and 
State agencies, and the private sector. The joint Service and 
National Marine Fisheries Service policy makes the following 
points. 

o In listing, the Service will solicit the expert opinions of 
at least three appropriate and independent specialists 
regarding pertinent scientific or commercial data and 
assumptions relating to taxonomy, population models, and 
supportive biological and ecological information for species 
being considered for listing. 

o In recovery, the Service will use the expertise of and 
actively solicit independent peer review to obtain all 
available scientific and commercial information from 
appropriate local. State and Federal agencies. Tribal 
governments, academic and scientific groups and individuals, 
and any other party that may possess pertinent information 
during the development of draft recovery plans for listed 
animal and plant species. 

Where appropriate, the Service will use independent peer 
review to review pertinent scientific data relating to the 
selection or implementation of specialized recovery tasks or 
similar topics in draft or approved recovery plans for listed 
species. 

In special circumstances, specific questions may be raised 
that require additional review prior to a final decision 
(e.g., scientific disagreement to the extent that leads the 
Service to make a 6-month extension of the statutory 
rulemaking period). The Services will determine when a 



261 



special independent peer review process is necessary and will 
select the individuals responsible for the review. 

QUESTION 6. How does the Department insure that there is no 
conflict of interest or economic self enrichment by those who 
propose species for listing? Does the Department have any rule 
or policy with regard to the payment of federal funds for further 
study of listed species to the individual or group proposing the 
species for listing? 

Answer: Section 4(b)(3) of the Endangered Species Act of 1973, 
as amended (ESA) , allows any interested individual to petition 
the Fish and Wildlife Service (Service) or NMFS, as appropriate, 
to list, de-list, or reclassify species, or to revise a listed 
species' critical habitat. On the average, the Service receives 
35 to 40 petitions annually, to amend the lists of threatened and 
endangered species. However, it is the Service's broader 
candidate assessment process that sets the Service's listing 
priorities, not the petition process. 

In response to an earlier inquiry from the Committee on Interior 
and Insular Affairs, the General Accounting Office (GAO) examined 
the issue of granting funds to perform studies associated with 
the listing of plant and animal species. Of the 222 contracts 
for studying endangered species that were examined, 38 contracts 
were awarded to study species for which petitions had been 
submitted. However, there was only one instance in which the 
petitioner was associated with a Service contract award (1992 GAO 
Report). In many instances, the petitioner is either the leading 
authority on a particular plant or animal species or has the 
latest available scientific information. 

There are also Departmental certifications that are applicable to 

federal grants and cooperative agreements that must be completed 

by the recipient of such a grant. Grants cannot be awarded to an 
individual if there is a conflict of interest. 

QUESTION 7. Does the Department have a position on whether the 
Act should continue to allow the listing of a subspecies or 
distinct population segment? 

Answer: The Department believes that to accomplish one of the 
primary purposes of the Act (that is, to provide a program for 
the conservation of threatened and endangered species) the 
ability to list subspecies and populations must be retained. It 
is vital that the genetic diversity of threatened and endangered 
species and the geographic distribution of taxa be conserved. 

Species are often comprised of smaller groupings - e.g. 
subspecies or populations. These components may be genetically 
distinct within the species, and improve the ability of the 
species as a whole to survive in response to environmental 
stresses and long-term change. The more genetically diverse a 
species, the greater the probability that the species will be 
able to adapt and survive. 

Should a subspecies begin to decline, this may be a warning that 
the species as a whole nay be in danger. Early recognition of 
such a trend greatly increases the probability that recovery can 
be achieved while usually minimizing the cost. The ability to 



262 



list subspecies and distinct vertebrate population segments 
provides the Department with a valuable tool that allows recovery 
actions to begin before the species rangewide is in trouble. It 
will also provide an opportunity to recognize that certain 
populations of an endangered species may merit classification as 
threatened or perhaps merit delisting a result of conservation 
measures that reduce or eliminate threats in those portions of 
the species range. The authority to list populations allows the 
Secretary to identify the conservation status of each population 
thereby avoiding the need to overregulate activities for 
populations that are not endangered. 

Lastly, there is strong public support for recognizing and 
affording special protection for groupings below the species 
level. For example, bald eagles are protected as threatened in 
the lower 48 states. Gray wolves and grizzly bears are listed in 
the lower 48 States, but not in Alaska. This allows appropriate 
protection and conservation where it is needed without overly 
regulating the animals where their populations are healthy. 

QUESTION 8. Should economic consequences of listing be 
considered during the listing process? 

Answer: Designation of a species as endangered or threatened is 
a biological determination, not an economic one. Once a species 
is biologically determined to be in danger, economic evaluations 
on how to most efficiently bring about recovery are then 
appropriate. 

It is difficult, if not impossible, to determine the monetary 
"worth" of a species. A species that may be aesthetically 
worthless to one person may be beyond value to another. Also, a 
species that may seem to be of little economic value may, in the 
future, be found to have incredible worth. A good example is the 
Pacific yew tree. In the past, this Pacific Northwest tree was 
discarded as nearly worthless wood. However, it has recently 
been found to contain chemicals of extremely high value in 
treating certain types of cancers. 

Species are the building blocks that create ecosystems, and 
ecosystems are essential in maintaining an inhabitable Earth. 
Losing species has been compared to pulling the rivets from an 
aircraft; if you pull enough rivets, at some point the aircraft 
will no longer function. No one can determine what may be the 
ultimate cost of losing a species. 

The appropriate time to consider economic consequences is when 
the actions needed to recover species are being planned and 
evaluated. It is then prudent to select recovery actions that 
are economically efficient as well as effective in meeting 
recovery goals. Brought into this equation are factors affecting 
local economies, community needs, and other societal concerns. 

QUESTION 9. Does the Department support or oppose judicial 
review of decisions to list or not list species? 

Answer: The Department believes that listing decisions should be 
made by Service adrinistrators based on the recommendations of 
professional biologists evaluating the best scientific and 



commercial data available. The Department makes listing 
decisions based on the five threat factors set forth in the Act. 
Determining the status of a plant or animal species and 
evaluating the threats to the species is a decision that must be 
based on a biological evaluation. Should a listing decision 
undergo judicial review, the biological rationale for our 
decisions should be clear and defensible. 

QUESTION 10. What role does designation of critical habitat as 
provided in Section 4 of the Act play in protecting species and 
what restrictions are placed on land, both public and private, 
when a designation of critical habitat includes either public or 
private land, or both? 

Answer: Clearly, species require habitat for survival and 
recovery. The Act requires the Secretary to designate critical 
habitat to the maximum extent prudent and determinable 
concurrently with listing a species. In determining what areas 
are critical habitat, the Service considers those physical and 
biological features that are essential to the conservation of the 
species and that may require special management considerations or 
protection — such as areas for shelter, breeding, feeding, and 
population growth. 

Although critical habitat may be designated on private or State 
lands, activities on these lands are not affected by the 
designation unless a Federal permit or other Federal 
authorization or funding is involved. It does not have 
regulatory implications for private activities that are directly 
or indirectly connected with Federal funding or Federal 
permitting, licensing, or other authorization. 

With regard to federal agencies, the Endangered Species Act 
regulations require agencies to consult with the Service on 
actions they plan to take that may affect listed species or 
designated critical habitat. Therefore, if a Federal agency 
plans, for instance, to dredge a river or issue timber leases in 
an area designated as critical habitat, it must first discuss the 
project with the Service. Because the law prohibits Federal 
actions that would adversely modify a species' critical habitat, 
the agency and the Service would attempt to develop a reasonable 
and prudent alternative. However, depending upon the species and 
its particular habitat needs, many activities can be undertaken 
within critical habitat without significantly impacting the 
characteristics of the habitat essential to the species. 

Designating critical habitat also assists private. State, and 
Federal agencies in planning future actions, since the 
designation identifies those habitats that will be given special 
consideration in section 7 consultations. With the designation 
of critical habitat, potential conflicts between projects and 
endangered or threatened species can be identified and possibly 
avoided early in the agency's planning process. 

Unlike listing determinations, where only science may be 
considered, the Act requires that socio-economic considerations 
be factored into critical habitat designations. In the course of 
the critical habitat designation process, the Service must 
conduct an economic analysis that estimates hov the designation 



264 



may affect Federal lands, as well as non-Federal activities 
authorized or funded by Federal agencies. Economic impacts 
associated with listing or other related statutes are not 
included in the analysis. The draft analysis isolates the 
incremental economic and conservation effects of the critical 
habitat designation. Economic effects are measured by evaluating 
factors such as changes in national income, regional jobs, and 
household income. Certain areas may be excluded from the 
critical habitat designation if the economic benefits of 
exclusion outweigh the benefits of including the area. Such 
areas cannot be excluded if their exclusion would result in 
extinction of the species. 

QUESTION 11: When the Fish and Wildlife Service consults with 
the Corps of Engineers in the issuance of a 404 permit covering 
property where a listed species might be present, the Fish and 
Wildlife Service has been requiring mitigation in various forms. 
(A) What legal authority allows the Fish and Wildlife Service to 
require mitigation? 

Answer: Under the ESA, Corps of Engineers' permits are subject 
to the consultation provisions of section 7. Those provisions 
require the Corps to ensure that the permitted actions are not 
likely to jeopardize the listed species (section 7(a)(2)), and 
that anticipated incidental take be minimized (section 7(b)(4)). 
If the project is not likely to jeopardize the continued 
existence of a listed wildlife species, but some individuals of 
the species are expected to be taken incidental to the activity, 
then the Service is not only authorized but required under 
section 7(b)(4) of the Act to specify reasonable and prudent 
measures and terns and conditions that are needed to minimize the 
impacts of such incidental take. 

The Service encourages other federal agencies to review their 
actions as early as possible in the planning process so that 
endangered species conflicts can be identified, avoided or 
remedied at minimum or no cost and with a maximum benefit for the 
species involved. The Service assists federal agencies in this 
process through informal consultation. If however, a project is 
likely to jeopardize the continued existence of a species then 
the Service will work with the federal action agency to identify 
reasonable and prudent alternatives to avoid jeopardy. 

For impacts to species and habitats not subject to the 
requirements of the ESA, the Service may also include mitigation 
recommendations pursuant to the Fish and Wildlife Coordination 
Act (FWCA) . Under the FWCA, agencies proposing to construct or 
authorize projects affecting water resources are required to 
consult with the Service, and the Service is obligated to provide 
its recommendations on fish and wildlife resources. However, 
these recommendations, if provided, are not binding on the action 
agency. In the case of a Corps 4 04 permit, the Corps is required 
only to give Service recommendations full consideration as a part 
of the Corps' public interest determination for the permit. 

QUESTION 11(B): What are the criteria for the types and amounts 
of mitigation that the Fish and Wildlife Service requires? 



265 



Answer: The amount and nature of the incidental take terms and 
conditions depend upon the nature and amount of the impact to the 
. species, the particular features of the proposed project, and how 
similar projects in the area are being handled. The consultation 
regulations require that such terms and conditions involve only 
minor changes that do not alter the basic design, location, 
scope, duration, or timing of the action. (50 CFR, 402 . 14 (i) (2) ) 

For species and habitats not subject to the requirements of the 
ESA, the Service may also provide recommendations consistent with 
the guidelines set forth in its Mitigation Policy (46 FR 7644). 
The Mitigation Policy establishes a framework for developing 
recommendations on mitigating impacts to fish and wildlife based 
on the affected habitat's scarcity or abundance, and the value of 
that habitat to particular species. 

QUESTION 12. At what point and in what form should jobs, 
economic concerns, and inpacts on private property be considered 
in protecting species under ESA? 

Answer: The ESA currently calls for use of the "best scientific 
and commercial data available" in listing and many other 
biological decisions; specific provisions for economic 
considerations exist for critical habitat determinations. 
However, concerns for the needs of affected parties also enter 
into many deliberations. For example, during section 7 
consultation, after determining the biological needs of a species 
that is likely to be jeopardized by a project as originally 
designed, the Service works with the Federal agency and applicant 
to determine whether there are alternative ways of proceeding 
with a modified project that avoid jeopardy. Section 7 requires 
the Service to identify reasonable and prudent alternatives, if 
available, under the regulations such alternatives must be 
economically and technically feasible. Similarly, under the 
guidance for enhancing participation on recovery planning, the 
Service seeks increased stakeholder involvement in the 
development and implementation of these plans and is required to 
minimize social and economic impacts under this guidance. 
Incidental take permits are based on habitat conservation plans 
developed by the affected parties, and consider both the biology 
and socioeconomic effect on the parties. Many of these actions 
are not dictated by ESA, but are applied as a matter of sound 
public policy. 

The key to successful implementation of the ESA and the recovery 
of listed species that is its primary goal is an appreciation 
that without the cooperation and support of the general public, 
little progress can be maintained. With that in mind, we strive 
to keep the impacts on those affected to the minimum necessary 
to meet the biological requirements of the ESA. Accordingly, we 
attempt to fully consider the impact of our actions on the public 
and reduce adverse impacts where possible. 

QUESTION 13: In almost every case where there is a conflict 
between species protection and resource users, the conflict has 
usually started as a lawsuit filed by an environmental 
organization under the civilian suit provisions of the Endangered 
Species Act. Does the department have a position on the citizen 



suit section and what can b« done to insure that public policy is 
driven by good science and public consensus rather than lawsuits? 

Answer: We disagree with the premise that "in almost every case 
where there is a conflict between species protection and resource 
users, the conflict has usually started as a lawsuit." In the 
large najority of cases where there are such conflicts, they are 
settled at the local level (between Fish and Wildlife Service 
field offices and the affected parties) . For example, it is the 
Service's policy to resolve resource-development conflicts as 
early as possible in the planning stages to allow flexibility for 
solutions before options are foreclosed. When such conflicts are 
resolved early, they do not become "issues;" successful 
negotiations rarely make the news. To illustrate the point, a 
five-year General Accounting Office survey of all Federal actions 
involving listed species reviewed by the Service determined that 
only 0.1% were blocked due to listed species concerns. 

The position of the Department of the Interior (and the Service) 
is to use the best scientific and commercial information 
available and to uphold the law as expressed in the Act. The 
Act, in itself, represents public consensus as expressed by 
Congress. On July 1, 1994, the Departments of Interior and 
Commerce jointly published policy statements relative to the Act. 
Among these policies are: 

-A requirement for peer review of scientific data in listing 
and recovery activities. This is intended to complement 
current public review processes. 

-Criteria setting information standards under the Act, 
establishing procedures and providing guidance to ensure that 
decisions represent established scientific standards based on 
the best scientific and commercial data available. 

-Expanded public participation in recovery planning and 
implementation . 

Citizen suit provisions in the Act aid in ensuring that good 
science is considered to the fullest extent possible. However, 
tighter staffing and funding constraints in future years may 
complicate the Service's ability to handle increasing regulatory 
workloads, as well as defend an expanding docket of citizen 
suites. 



QUESTION 14. Are the Department's new *'Safe Harbor" policies 
lawsuit proof? 

Answer: No public policy is "lawsuit proof" these days, but the 
Service and private landowners have every reason to believe that 
"Safe Harbor" will prove to be a precedent-setting and successful 
program. The Department will vigorously defend any challenges 
filed against it or against participating landowners. 

QUESTION 15: How would the Department increase the role of the 
states in ESA decision making? 



267 



Answer: Last July, the Administration issued policy calling for 
Federal agencies to encourage greater participation by the States 

in the conservation of candidate species; 

by soliciting the states' expertise in listing decisions and 
determinations of recovery retjuirements . The states already 
provide leadership and expertise in many recovery planning 
and implementation efforts, and we encourage thera to increase 
this role; 

by acting as an important source of scientific data for 
section 7 consultations; 

by offering the states the opportunity to participate in 
incidental take permit programs; and 

by encouraging coordination between the states for shared 
species and ecosystems by seeking appropriate levels of 
funding for conservation programs under section 6 of ESA. 

In addition, the Administration has proposed in the March 1995 10 
point plan the following changes that Congress could make to 
increase the role of states in ESA decision making: 

- Require the Secretary to concur with a state conservation 
agreement and suspend the consec[uences under the ESA that would 
otherwise result from a final decision to list a species if a 
state has approved a conservation agreement and the Secretary 
determines that it will remove the threats to the species and 
promote its recovery within the state. Suspension of the 
consequences of listing a species pursuant to an approved state 
conservation agreement should be permitted at any point before or 
after a final listing decision. 

- Require that special consideration be given to State 
scientific knowledge and information. Petitions would be sent to 
each affected State fish and wildlife agency. Require the 
Secretary to accept a State's recommendation if it recommends 
against proposing a species for listing or de-listing unless the 
Secretary finds, after conducting independent scientific peer 
review, that listing is required under the provisions of the ESA. 

- Provide States the opportunity to assume lead 
responsibility for developing recovery plans and any component 
implementation agreements. Establish mechanisms to ensure 
participation by and coordination with each affected state in the 
development of the recovery plan. 

- Authorize appropriate State agencies, as well as the 
Secretaries of Interior and Commerce, to enter into voluntary 
pre-listing agreements with cooperating landowners to provide 
assurances that further conservation measures would not be 
required of the landowners should a species subsequently be 
listed. 

- Provide a State with the opportunity to assume 
responsiljility for issuing permits under section 10(a)(2) for 



areas within a State which have been identified for such 
assumption in an approved recovery plan or for which there is 
otherwise an approved comprehensive, habitat-based state program. 



QUESTION 16. What is the Department's position on condensation 
for property owners when their property is used as habitat for 
wildlife? What is your position on the compensation provisions 
of B.R. 925 as passed by the House of Representatives? 

Answer: The Service supports compensation to landowners if their 
property is "taken" by federal regulatory action in accordance 
with the Supreme Court's interpretation of the requirements of 
the Fifth Amendment. H.R. 925 as passed by the House goes far 
beyond any court interpretation of the requirements of the Fifth 
Amendment, by requiring compensation whenever an ESA-related 
action lowers the value of even a portion of a property by 20% or 
more. The Service strongly opposes H.R. 925. 

The Department believes that, if enacted, H.R. 925 would spawn 
litigation that could significantly affect how the Service 
administers many ESA programs. Effects of the bill would be 
especially injurious for species with significant portions of 
their ranges on private lands. 

The bill could affect how the government acquires lands for 
wildlife purposes. Currently, the Service uses a Land 
Acquisition Priority System to identify high priority acquisition 
targets. This bill could force purchase of lands with less-than- 
ideal qualifications and in an unplanned and uncoordinated 
fashion. Furthermore, such lands might present a management 
burden if they lack significant long-term wildlife values or are 
in inconvenient locations. 

Budgetary impacts of this bill would be significant. Potential 
costs include costs of compensation payments, land acquisition 
costs, and costs of administering lands acquired. However, it is 
difficult to accurately predict fiscal impacts given the lack of 
specifics in how requirements of the bill would be administered 
and the many uncertainties associated with how the law would 
actually work in real-world circumstances. 

In lieu of this approach, the Administration promoted ten 
principles to guide the Administration's effort for reforming and 
implementing the Endangered Species Act. Among these, the 
Administration will ensure that ESA will be implemented in a 
manner minimizing thp social and economic impacts; that 
landowners will be tteated fairly and with consideration; that 
incentives for landowners to conserve species will be created; 
and that effective use of limited public and private resources 
will be accomplished by focusing on groups of species that depend 
on similar habitats. For example, on July 20, 1995, the Service 
published a proposed rule exempting certain small landowners and 
low impact activities from Endangered Species Act requirements 
for threatened species. It proposes to e.xempt such activities 
that are presumed to individually or cumulatively have little or 
no lasting effect on the likelihood of survival and recovery of 
threatened species and, therefore, have only minor or negligible 



adverse effects. In particular, the following activities would 
not be regulated under this proposal: 

o activities on tracts of land occupied by a single 
household and used solely for residential purposes; 

o one-time activities that affect 5 acres or less of 
contiguous property if that property was acquired prior to the 
date the species was listed; and 

o activities which are identified as posing negligible 
impacts to listed species. 

QUESTION 17: During the consultation process, what procedures 
are available to the public to obtain and have input into 
biological assessments? 

Answer: Biological assessments are prepared by the agency 
proposing the action. The assessments list and analyze expected 
impacts on listed and proposed species. The development of an 
assessment is frequently governed by the administrative 
procedures of the agency. Often, NEPA requires public input 
during scoping, proposed action development, and final preferred 
alternative selection. It is at these stages that the public may 
have access to the process. Of course, if the Federal action 
involves a permit, then the permittee has full access to the 
process. 

QUESTION 18: Provide the comnittee with information on the 
amount of federal funds expended to in9>lement the President's 
Forest Plan in the Pacific Northwest, including all funds for job 
retraining and for funds to state and local governments to 
replace payments in lieu of taxes. 

Answer : 

Figures ($ 'ooo) enacted for Interior agencies for fiscal year 
1995: 

-"Jobs in the Woods" 

Bureau of Land Management 11,977 

Fish and Wildlife Service 3,513 

Bureau of Indian Affairs 2,595 

Subtotal 18,085 

-Forest Plan Implementation 

Bureau of Land Management 20,810 ' 

Fish and Wildlife Service 12,227 
Bureau of Indian Affairs 3,660 
National Park Service 136 

Subtotal 36,'8l3 

-Timber Program 

Bureau of Indian Affairs 1, 497 

TOTAL, DEPARTMENT OF 

THE INTERIOR 56,415 



270 



QUESTION 19. What is the total acreage in the United States 
available for haJaitat on federal lands? The total in the lower 
48 states? Break down the numbers as to classification? 

Answer: The breakdown by Federal agencies is as follows. 



Agency 



Bureau of Land Management 

U.S. Forest Service 

Fish and Wildlife Service 

National Park Service 

Department of Defense 

Corps of Engineers 

Bureau of Reclamation 

Bureau of Indian Affairs 

Department of Energy 

Other Civil Agencies 

Tennessee Valley Authority 

Agricultural Research Service 

NASA 

Department of Transportation 

TOTAL 706.0 



Estimated 


Total 


Million Acres 


268 


5 




219 


1 




92 







74 


9 




25 







11 


5 




7 


8 




2 


7 




2 


4 




1 


3 




1 










4 







3 







1 





An additional 51.8 million acres are Tribal Trust Lands. 

However, it should be noted that these estimates are for lands in 

Federal ownership, not estimates of areas that could provide 
habitat for plant and animals. 

QUESTION 20 (A) : Does the Act currently allow the Fish and 
Wildlife Service to choose the recovery plan for the species that 
has the least cost and the least impact on jobs and the economy? 

Answer: The ESA requires the developr.ent of a recovery plan that 
will meet the recovery needs of the species. After ensuring that 
level of support to the species, the Fish and Wildlife Service is 
not constrained in determining the best alternative way to 
achieve that recovery. For example, in determining how to 
accomplish habitat protection for the species the Service has 
traditionally sought to secure agreements or easements before 
seeking fee acquisition, which could affect local ownership and 
tax base relationships. On July 1, 1994, the Departments of the 
Interior and Commerce announced their joint policy establishing 
guidelines for recovery planning, expanding the constituency of 
recovery teams to include State agencies, private individuals and 
organizations, and other stakeholders that are affected by 
recovery planning and implementation. The policy and guidance 
require efforts to minimize social ar.d economic impacts 
consistent with timely recovery of listed species. 

QUESTION 20(B): Bow do economic issues currently affect the 
choice of recovery options? 

Answer: The Fish and Wildlife Service has learned that decisions 
to retain part of a resource base fcr maintenance and recovery of 
a listed species may actually affect consideration and decisions 
between competing job and eccr.cmic ir.-.erests. Pursuant to the 
Administration's July pciicy, guidelir.es are being drafted to 



271 



activities 

Brovm pelican Reduction of pesticide/contaminants 

and improved habitat conservation 
measures 

Gray whale Natural recovery following 

cessation of commercial whaling 



272 



PAGE 106 
LINE 20 



QUESTION: How many northern spotted owls presently live in the 
Pacific northwest? 

ANSWER: There was no estimate of population size of northern 
spotted owls made at the time of listing of the species, and no 
historical estimate is available. Counts of owls observed each 
year have been conducted since listing, but they are not 
estimates of population size. The USDI Northern Spotted Owl 
Recovery Team indicated that spotted owls were known to be 
located at approximately 4,600 sites on all land ownerships 
between 1987 and 1991. Option 9 states that the actual 
population is undoubtedly larger because a portion of the range 
had yet to be surveyed. For the 4(d) rule, this count of known 
sites was updated to approximately 5,600. This "increase" from 
4,600 to 5,600 sites simply reflects an increase survey effort, 
but still is not a population estimate. The number of known owl 
sites does not give an indication of status, rather population 
trend (demographic) studies and habitat trends are the best 
indication of the status of the owl population. Demographic 
studies at the time of listing and at present continue to suggest 
a declining population. 



273 



PAGE 107, 
LINE 12 



QUESTION: How many owls would you say are necessary to ensure 
the survival of the species? 

ANSWER: No goal based on population size (i.e. actual number of 
individuals) has been put forward. The recovery goal is to 
maintain or establish a stable or increasing population over 
time, as determined from demographic studies. In a previously 
unpublished draft recovery plan, the owl population must remain 
stable or increasing for at least 8 years, as indicated by 
density and demographic estimates, to be considered for 
delisting. Analyses also must indicate that the population is 
not likely to need the protections of the Endangered Species Act 
within the foreseeable future. Ultimately, the question of 
delisting hinges on long-term stability and viability of the 
population and threats to the population rather than specific owl 
numbers. 



274 

PAGE 108, LINE 5 



Facts about the 
Endangered 
Species Act 



(Rev. June/July 1995) 



275 



Facts about the 
Endangered Species Act 

I. Endangered Species Act At A Glance 

II. Endangered Species Act Success Stories 

III. Endangered Species Act: The Rest of the Story 



276 



Endangered Species Act 
At A Glance 



Number of Listed Species 

(as of April 30, 1995) 

■ U.S. species-956 

■ Foreign species-560 

■ Total- 1,516 (Dual status species are counted 
only once) 

■ Of U.S. species, 430 species are animals. 
526 are plants. 

■ Of the listed U.S. species, 759 are "endangered," 
203 are "threatened " Six U.S. listed animals 
have dual status. 

■ The list includes mammals, birds, reptiles, 
amphibians, fishes, snails, clams, cmstaceans, 
insects, arachnids, and plants. Groups with the 
most listed species are (in order) plants, birds, 
fishes, mammals, and bivalves 

■ An "endangered" species is one that is in dan- 
ger of extinction. A "threatened" species is one 
likely to become endangered Both receive the 
same protection, but there is more manage- 
ment flexibility and a possibility for permitting 
regulated "talcing" of threatened species. 



Recovery 



The status of 27 percent of species is unknown, 
primanly because of budget and staffing con- 
straints within the Fish and Wildlife Service. 

2 percent of listed species are believed extinct 
The Service has been conservative in removing 
possibly-extinct species from the list because of 
the chance they might be rediscovered, as 
recently occurred with the Palos Verde blue but- 
terfly in California. 

These statistics should be considered in light of 
the fact that many species have been added to 
the list only within the last few years 



Budget 



Congressional appropriations for the Fish and 
Wildlife Service's endangered species program: 

FY 95-$83.3 million* 

FY 94-$67.5 million* 

FY 93-$45.8 million 

FY 92-$42.3 million 

FY 91 -$32.0 million 

FY 90-$24.3 million 



513 (54 percent of listed U.S. species) are 
covered by approved recovery plans. 

232 additional species have draft recovery 
plans 

As reported in the 1992 Report to Congress, 
nearly 40 percent of listed species are stable or 
improving. 



277 



ENDANGERED SPECIES ACT AT A GLANCE 



Numbers of Listings per Year 

■ The Fish and Wildlife Service is committed to 
propose for listing about 100 species per year 
through 1996 under a 1992 court settlement 
with the Fund for Animals and other environ- 
mental groups. 

■ Listings by year since the settlement: 

FY 93-92; FY 94-105; FY 95-77 (to 2/28/95) 



Previous listings by fiscal year: 

1967 78 1981. 

1970 243 1982. 

1971 80 1983. 

1972 9 1984. 

1973 21 1985. 

1974 1986. 

1975 12 1987. 

1976 166 1988. 

1977 46 1989. 

1978 39 1990. 

1979 34 1991. 

1980 56 1992. 



..5 
.7 
23 
45 
57 
52 
52 
54 
35 
46 
53 
93 



Proposed and Candidate Species 



3,698 are listed as "category 2" candidate 
species. These are taxa for which additional 
information is needed to support a proposal to 
list. It is likely that many species on category 2 
will be found not to warrant listing. 



Habitat Conservation Plans 



■ The Endangered Species Act provides for "habi- 
tat conservation plans" (HCP) to give flexibility 
to private landowners who have listed species 
on their property. 

■ Under an "HCP," the landowner receives a per- 
mit that allows "incidental take" of listed 
species in the course of certain activities, such 
as development, provided that the landowner 
follows certain other steps to provide for con- 
servation of the species. 

■ This Administration is making greater use of 
HCP's than did previous Administrations. There 
are currently about 73 approved HCP's and 
more than 170 in development. 

■ HCP's oflen work better for large landowners 
(such as timber companies and other corpora- 
tions) than for owners of very small tracts of 
private land, but some HCP's have been negoti- 
ated with small landowmers. 



■ 106 candidate species are currently proposed 
for listing. 

■ 293 candidate species are listed as "category 1" 
candidate species These are taxa for which the 
Service has sufficient information to support a 
listing proposal, but which have not been pro- 
posed because of other work priorities. 



92-551 - 95 - 10 



278 



Endangered Species Act 
Success Stories 



Virginia: Clinch River Riparian 
Restoration 



Nearly 10 miles of fencing and several alternative 
water supply structures have been installed on pri- 
vate land along the Clinch River and its tributaries 
in southwest Virginia in an attempt to eliminate 
streambank erosion from overgrazing and tram- 
pling of endangered fresh water mussels by cattle 
Both the fencing and the water structures were 
financed jointly by the U.S. Fish and Wildlife 
Service, The Nature Conservancy the Natural 
Resource Conservation Service and included con- 
tributions from private landowners. The U.S. Fish 
and Wildlife Service has worked cooperatively 
with The Nature Conservancy and the U.S. 
Department of Agriculture to implement this pro- 
gram. Approximately a dozen landowners have 
agreed to modify their cattle management prac- 
tices to eliminate the trampling of mussel beds 
and to improve water quality for the mussels by 
nutrient and sediment reduction. More farmers are 
expected to join this program 

Contact: 

■ Spence Conley, Public Affairs, Region 5 
413-253-8325 

■ Martha and Thomas Mewdome, private citizens 
703-479-3057 



Montana: Gray Wolf 



In 1993, a pair of gray wolves established a terri- 
tory along the Rocky Mountain East Front The ter- 
ritory encompassed four ranches as well as state 
and federal land, and meetings were held with the 
affected land owners and three federal agencies. 
The wolves denned in the middle of a cattle pas- 
ture and the rancher was provided with an incen- 
tive payment of $5,000 by Defenders of Wildlife for 
having wolf pups produced on his property. The 



U.S. Fish and Wildlife Service initiated a study in 
cooperation with the US Forest Service, Montana 
Department of Fish, Wildlife and Parks and the 
ranchers, to evaluate the wolf population Funding 
for the study was provided by the Bureau of Land 
Management, Boone & Crockett Club and Wolf 
Haven International Ranchers actively assisted 
with capture and radio collaring of two wolf pups 
and reporting wolf observations Two yearling 
wolves were relocated in April, 1994, due to live- 
stock depredation, but none of the cooperating 
parties requested removal of the wolf pack The 
wolves produced at least three pups in April, 1994, 
at the same den site as in 1993 and continue to use 
the ranches as about half of their territory 

Contact: 

■ Mike Smith, Public Affairs, Region 6 
303-236-7904 

■ A. Dood, ES Coordinator, Montana Department 
of Fish, Wildlife and Parks 

406-994-6433 



Montana: Private Property and 
Eagle Nesting 

Louisiana-Pacific Corp owns land adjacent to 
Nevada Lake where an active bald eagle nest 
occurs. The corporation was aware of the bald 
eagle nest and the potential to displace the eagles 
due to proposed logging operations The corpora- 
tion contacted the Montana Field Office of the U.S. 
Fish and Wildlife Service and arranged a meeting 
to schedule and coordinate logging operations 
Agreements were reached on the timing and type 
of logging, and monitoring after the logging was 
completed confirmed successful nesting by the 
pair of eagles. 

Contact: 

■ Mike Smith, Public Affairs, Region 6 
303-236-7904 



279 



ENDANGERED SPECIES ACT SUCCESS STORIES 



Idaho, Montana, Wyoming: 
Gray Wolf Reintroduction 



Lower 48 States: 

The American Bald Eagle 



After nearly two years, 120 public meellngs, hear- 
ings and open houses, and consideration of 
170,000 public comments, the US Fish and 
Wildlife Service produced a final Environmental 
Impact Statement with a recommendation to 
establish "non-essential, experimental" popula- 
tions of wolves in two release areas, which com- 
prise parts of Idaho, Montana and Wyoming, 
including Yellowstone National Park The "non- 
essential, experimental" designation allows flexi- 
ble management of reintroduced animals under a 
special provision of the Endangered Species Act, 
which gives the Service the option of implement- 
ing special rules to address the concerns of local 
residents The Service subsequently established 
guidelines which allow federal agencies, the 
states, tribes and landowners to take action, when 
necessary, to protect livestock or deal with prob- 
lem wolves With those provisions in place, the 
Service has completed the first step in reintroduc- 
tion, bringing 29 Canadian gray wolves to 
Yellowstone and central Idaho in January, 1995 If 
allowed to return on their own, the wolves would 
eventually repopulate the area, but without the 
special management options now available and 
requiring additional decades to reach recovery. 
With continuing reintroductions over the next two 
to four years, recovery levels of 100 wolves in each 
reintroduction area would be reached by the year 
2002, at a cost of about $6.7 million. 



By 1963, the presence of DDT in the food chain, 
which caused eagles and other birds to lay eggs 
with shells that were too thin to last to hatching, 
had precipitated a dramatic decline in the eagle 
population to 417 nesting pairs. A ban on the use 
of DDT and the protection afforded the eagle by 
the Endangered Species Act had, by 1994, 
increased the population nationwide to about 
4,400 nesting pairs This impressive increase in 
the eagle population allowed the US Fish and 
Wildlife Service to propose in 1994 that the eagle 
be reclassified in 43 states from endangered to 
threatened, and to recommend eventual removal 
from the endangered species list altogether, 
although the latter action may not occur until the 
year 2005 The eagle population today is consid- 
ered quite strong, with the species doubling its 
breeding population every 6 to 7 years The aver- 
age number of eaglets produced per active nest 
per year now indicates an increase in the species' 
population of about 10 percent per year. The num- 
ber of occupied active eagle nest sites increased 
408 percent since 1974 and 32 percent since 1990. 

Contact. 

■ Susan Dreiband, Public Affairs, Region 3 
612-725-3519 

■ Georgia Parham, Public Affairs, 
US Fish and Wildlife Service 
202-208-5634 



Contact: 

■ Ed Bangs, Project Leader, Wolf Reintroduction 
Program 

406-449-5225 

■ Georgia Parham, Public Affairs, U.S. Fish and 
Wildlife Service 

202-208-5634 



280 



ENDANGERED SPECIES ACT SUCCESS STORIES 



Massachusetts: The Plymouth 
Redbelly Turtle 



The U.S. Fish and Wildlife Service listed the red- 
belly turtle, a large, freshwater turtle with a shell 
10 to 12 inches long when mature, as an endan- 
gered species in 1980. The Plymouth redbelly is 
found in 17 ponds and one river in Plymouth 
County, Massachusetts. It is a mid-Atlantic to 
southern species with its closest relatives in New 
Jersey. Because of its small population size (there 
are only about 300 breeding-age turtles in 
Massachusetts) and its limited geographic range, 
the Plymouth redbelly is susceptible to population 
declines. But scientists have nonetheless made 
steady progress toward achieving full recovery of 
the species. A major recovery effort was the estab- 
lishment in 1984 of the Massasoit National Wildlife 
Refuge, a satellite of Great Meadows National 
Wildlife Refuge in Sudbury, operated jointly by the 
Service and the Massachusetts Division of 
Fisheries and Wildlife. Biologists have made efforts 
to protect turtle nests and hatchlings from preda- 
tion. Cranberry growers in Plymouth County have 
cooperated in the recovery program, the openness 
of reservoirs and upland watershed areas man- 
aged by the cranberry industry provide high quality 
turtle nesting habitat. All of these efforts have 
markedly improved the outlook for the turtle's 
future and biologists now predict that reclassifica- 
tion of the turtle to threatened will be possible by 
the year 2000 if the recovery program is success- 
ful, and full recovery may be achieved by 2015. 

Contact: 

■ Spence Conley, Public Affairs, Region 5 
413-253-8325 

■ Rachel F. Levin, Public Affairs, Region 5 
413-253-8327 



Ohio: Bald Eagle 



Through successful restoration efforts by the Ohio 
Division of Wildlife and protection under the 
Endangered Species Act, bald eagles have signifi- 
cantly recovered in Ohio. The 1995 count of nest- 
ing pairs in the state was 29, compared to 4 
nesting pairs counted in 1974. The US Fish and 
Wildlife Service assists in helping to avoid or mini- 
mize impacts to the birds through contaminants 
monitoring and consultations under the endan- 
gered species program. 



Texas: Pecos Gambusia, Comanche 
Springs Pupfish 

The Texas Department of Parks and Wildlife, the 
Texas Agricultural Extension Service, private 
landowners, and the U.S. Fish and Wildlife Service 
are working to create endangered fish habitat and 
continue traditional agricultural practices in West 
Texas. An agreement was reached between 
landowners and Balmorhea State Park to guaran- 
tee surface water in an artificial cienga (wetland 
area). Ciengas are traditional habitat for the 
endangered Pecos gambusia and Comanche 
Springs pupfish. In exchange for providing water, 
landowners have the flexibility to implement alter- 
native pesticide measures around outer irrigation 
canals. 

Contact; 

■ Tom Bauer, Public Affairs, Region 2 
505-766-3940 



281 



ENDANGERED SPECIES ACT SUCCESS STORIES 



Texas: An Agreement to Protect 
Red-Cockaded Woodpeckers 



In August 1994, the US Fish and Wildlife Service 
signed a Memorandum of Agreement with 
Champion international Corporation, the US 
Forest Service, and the Texas Parks and Wildlife 
Department in Onalaska, Texas, to benefit the 
endangered red-cockaded woodpecker Under the 
agreement. Champion will protect and manage a 
2,000-acre mature longleaf pine stand, a type of 
habitat rare in East Texas It will benefit the wood- 
pecker and other sensitive species, including other 
federal and state-listed wildlife, while allowing the 
selective harvest of individual trees in the area. 
Champion will consolidate its long-term wood- 
pecker management in this area, increasing the 
prospects for survival and expansion of existing 
populations within the management area, and 
providing a reserve population to bolster other 
populations on state and federal lands in Texas. 



Oregon: Logging and the 
Spotted Owl 

Under an agreement between the U.S. Fish and 
Wildlife Service and Weyerhaeuser Co., the wood 
products corporation will log on 209,000 acres in 
Oregon's spotted owl country This is the first such 
plan in Oregon between the Federal government 
and a private timber company The Millicoma Tree 
Farm agreement, known as a Habitat 
Conservation Plan (HCP), will make a combination 
of set-asides for the spotted owl for the first 20 
years of what is at least a 50-year plan In return, 
Weyerhaeuser will be protected from prohibitions 
on "taking" of spotted owls-restrictions that ordi- 
narily apply to the harm of protected species on 
private land. There are 35 owl sites on the 
Millicoma property and 10 pairs have produced 
offspring Under the Millicoma plan, Weyerhaeuser 
will 1) leave 1,963 acres" of existing habitat for at 
least the first 20 years of the agreement, 2) achieve 
by the year 2014 a landscape in which at least 40 
percent of the tree farm will be in forested stands 
capable of providing habitat for dispersing young 
owls and 3) maintain the plan for 50 years, with 



the Service having the option of extending it for 
another 30 years if certain criteria related to the 
status and conservation of the owl are met. The 
Weyerhaeuser agreement is the third such Habitat 
Conservation Plan the Service has approved with a 
private timber company In 1992, the Service 
approved a plan for a 383,000-acre parcel owned 
by the Simpson Timber Company in northern 
California; in 1993, a similar plan was approved for 
the Murray Pacific Corporation's 54,000-acre hold- 
ings in Lewis, Washington. 'This is a classic 'win- 
win' solution, and I thank Secretary Babbitt for his 
leadership and compliment the Fish and Wildlife 
Service for its professional approach in handling 
our application," said Charies W Bingham, execu- 
tive vice president of the Weyerhaeuser Co. 
"Weyerhaeuser has distinguished itself as a real 
leader in the future of forest management," said 
Secretary Babbitt. "The land included in this plan 
will now be managed for both timber and owls, 
showing that we can achieve our conservation 
goals and still cut timber in an environmentally 
responsible way" 

Contact: 

■ David Klinger, Public Affairs, Region 1 
503-231-6121 

■ Paul Barnum, Communications Manager, 
Weyerhaeuser Co. 

503-741-5431 



Texas: The Brown Pelican 



In 1994, brown pelicans, first listed as endangered 
in 1970, successfully nested on Little Pelican Island 
in Galveston Bay in Texas for the first time in more 
than 40 years. Approximately 125 pairs nested and 
produced 90 young. 

Contact: 

■ Tom Bauer, Public Affairs, Region 2 
505-766-3940 



282 



ENDANGERED SPECIES ACT SUCCESS STORIES 



Texas: Aplomado Falcon 

Aplomado falcons are being reintroduced in 
Cameron County, Texas, where a voluntary effort 
involving local landowners, and state and federal 
agency representatives resulted in the formation 
of the Cameron County Wildlife Co-Existence 
Committee. Through this effort, landowners were 
able to express their concerns regarding nationally 
mandated pesticide restrictions and offer practical 
alternatives to enable traditional agriculture to 
co-exist with endangered species. This spring, 
aplomado falcons nested near Brownsville, Texas, 
the first time this species has nested in the United 
States in more than 40 years. The pair produced 
one healthy chick. The Peregrine Fund, an inde- 
pendent conservation group dedicated to birds of 
prey has released more than 30 captive-bred 
aplomado falcons at Laguna Atascosa National 
Wildlife Refuge in southern Texas since 1993. 
Further releases are planned. 

Contact; 

■ Tom Bauer, Public Affairs, Region 2 
505-766-3940 

■ Wayne Halvert, Chairman, Wildlife 
Co-Existence Committee 
210-423-7015 



Ohio: A Consultation Helps Save 
800 Jobs 



Virginia: Virginia Round-Leaf Birch 

while only 1 1 trees remain of the rare Virginia 
round-leaf birch in southwest Virginia, cultivated 
seedlings have increased the species' population 
to 1,400 trees in 20 additional locations, moving 
the US Fish and Wildlife Service to propose in 
November 1994 that the species be reclassified 
from endangered to the less-critical category of 
threatened The Virginia round-leaf birch was first 
described by botanist W W Ashe, who noticed the 
trees with the unusual leaves on the banks of 
Dickey Creek in Virginia in 1918 For almost 60 
years, the birch was believed extinct, until a natu- 
ralist rediscovered the species not far from Ashe's 
original site Representatives from various govern- 
ment agencies, academic institutions, the conser- 
vation community and the private sector formed a 
committee to study manage and protect the tree. 
Private landowners are cooperating by allowing 
the erection offences, the distribution of artifi- 
cially-propagated seedlings, the removal of com- 
peting vegetation, and by helping to stabilize creek 
banks against erosion The outlook for the round- 
leaf birch has improved significantly and it may 
eventually be removed from the threatened list. 

Contact: 

■ Spence Conley, Public Affairs, Region 5 
413-253-8325 

■ Diana Weaver, Public Affairs, Region 5 
413-253-8329 



When the Meigs 31 coal mine flooded with under- 
ground water in 1993, the Southern Ohio Coal 
Company faced a dilemma Should they close the 
mine and cause job losses, or open the mine and 
risk environmental damage from the pumping of 
water from the mine shaft? The company worked 
with a number of federal and state agencies, and 
with the U.S. Fish and Wildlife Service on feder- 
ally-listed endangered species issues. Through an 
informal consultation, the company and the 
Service arrived at a solution that avoided or mini- 
mized damage to endangered mussels when 
water in the flooded mine was pumped into two 
creeks that feed into the Ohio River. The mine is 
again open and 800 residents still have their jobs. 



ENDANGERED SPECIES ACT SUCCESS STORIES 



Massachusetts: Bog "nirtle Habitat 

Wetlands have been restored by The Nature 
Conservancy on land the organization owns in 
Massachusetts, for the benefit of the bog turtle. 
This restoration will provide critical basking, nest- 
ing and nursery habitat for the bog turtle 

Contact: 

■ Spence Conley Public Affairs, Region 5 
413-253-8325 

■ Frank Lowenstein, The Nature Conservancy 
413-229-0232 



New Jersey: Bat Conservation 



The U.S. Fish and Wildlife Service completed con- 
struction of a bat conservation gate on private 
property at the Hibernia mine in Morris County 
New Jersey during July 1994 The Hibernia mine 
supports the largest known bat hibernaculum in 
New Jersey and the only known hibernaculum for 
the federally endangered Indiana bat in the state. 
The landowner granted permission for construc- 
tion of the gate to the Service and the New Jersey 
State Endangered and Nongame Species Program. 
This project was also supported by Bat 
Conservation International, a non-profit organiza- 
tion dedicated to bat conservation around the 
world. 

Contact: 

■ Spence Conley Public Affairs, Region 5 
413-253-8325 

■ Mike Valent, New Jersey Endangered and 
Nongame Species Program 
908-735-8975 



California: San Francisco Bay and 
Sacramento-San Joaquin Delta 



On December 15, 1994, the federal government 
and the State of California agreed to a plan to pro- 
tect the San Francisco Bay and Sacramento-San 
Joaquin Delta estuary ecosystem, while providing 
reliable water supplies to farms and cities across 
the state The landmark agreement, which came 
after lengthy and intensive negotiations, involved 
four federal and five state agencies It is already 
considered a model for solving complex resource 
management issues The pact covers the delta 
inland from San Francisco Bay to the confluence of 
the Sacramento, the San Joaquin and a number of 
smaller Northern California rivers It establishes 
limits on how much fresh water can be diverted 
from the estuary to agriculture and municipal 
water users. The pact also aims to protect imper- 
iled fish species by ensuring that the young survive 
migration through the delta and that diversions do 
not make breeding waters too salty The delta may 
be California's most important water resource and 
is the largest wetland habitat in the western 
United States It provides 60 percent of the fresh 
water used in California and is the source of irriga- 
tion water for nearly half of the nation's fruit and 
vegetable crops The December agreement estab- 
lished final water quality standards for the bay- 
delta issued by the Environmental Protection 
Agency and included the US Fish and Wildlife 
Service final designation of critical habitat for the 
delta smelt, listed as a threatened species. "1 want 
to congratulate all involved parties for reaching 
this unprecedented agreement," said Richard 
Rosenberg, chairman and chief executive officer of 
the Bank of America and chair of the Water Task 
Force of the California Business Roundtable. "It 
demonstrates that water supply in California can 
be managed in the best interests of both the econ- 
omy and the environment." 

Contact: 

■ David Klinger, Public Affairs, Region 1 
503-231-6121 

■ Bill Glenn, Public Affairs, Environmental 
Protection Agency 

415-744-1589 



284 



ENDANGERED SPECIES ACT SUCCESS STORIES 



Montana: Bald Eagle Viewing 
Management Program 



Extensive local, state and national media attention 
has attracted more than 10,000 people each fall to 
view the concentration of eagles on the Missouri 
River below Canyon Ferry Dam. Between mid- 
October and mid-December, more than 400 bald 
eagles at a time gather to feed on spawning koka- 
nee salmon A cooperative management plan and 
public education program was developed to help 
the public view the eagles while minimizing dis- 
turbance to the birds Recreational and other 
activities such as dredging and mining are coordi- 
nated and managed A Bureau of Reclamation 
Visitor Center was dedicated to informing and 
educating the public about the seasonal eagle 
influx, and approximately 4,200 people used the 
Visitor Center in 1993, including 2,690 elementary 
school children Cooperators include the US Fish 
and Wildlife Service, the Montana Department of 
Fish, Wildlife and Parks, the Bureau of Land 
Management, the US Forest Service, Bureau of 
Reclamation, municipal and county representa- 
tives and private land owners. 

Contact: 

■ Mike Smith, Public Affairs, Region 6 
303-236-7904 

■ Betsy Spettigue, Montana Department of Fish, 
Wildlife and Parks 

406-444-1276 



Kansas: Highway Bridge 
Consultations 

Through consultations with the Federal Highway 
Administration regarding various bridge replace- 
ment projects over the past several years, the US 
Fish and Wildlife Service and FHWA, along with 
state wildlife and highway agencies, have devel- 
oped a relationship that has seen no highway 
bridge replacements either stopped or significantly 



delayed when they had potential to affect bald 
eagle habitat In each instance, the habitat (usually 
perch trees) was either I) avoided altogether or 2) 
replaced at cost in a nearby area 

Contact: 

■ Mike Smith, Public Affairs, Region 6 
303-236-7904 

■ Tony Zahn, Public Affairs, Federal Highway 
Administration 

816-276-2700 



Colorado: The Uncompahgre 
Fritillary Butterfly 

Discovered in 1978, the butterfly was threatened 
over the years by collectors, trampling by live- 
stock, small population size and low genetic vari- 
ability and was listed as endangered by 1991 
Colonies existed on U.S. Bureau of Land 
Management land and on U.S. Forest Service 
property Though BLM and the USPS had collecting 
and grazing restrictions in place prior to listing, 
adding the butterfly to the list increased its protec- 
tion and placed more emphasis on managing the 
fragile habitat in which the butterfly resides. 
Following the listing, the US. Fish and Wildlife 
Service entered into an interagency agreement to 
provide recovery funding Partnerships were also 
formed with the University of Nevada, Reno, and 
the Colorado Natural Areas Program to carry out 
preparation and implementation of a recovery 
plan Since its listing, the butterfly has shown an 
increase in numbers and a new large colony has 
been found a little more than a mile from the origi- 
nal discovery site If funding is provided for man- 
agement and research in coming years, the 
butterfly should continue its recovery trend. 

Contact: 

■ Mike Smith, Public Affairs, Region 6 
303-236-7904 

■ Janet Coles, Colorado Natural Areas Program 
303-866-3203 (x330) 



285 



ENDANGERED SPECIES ACT SUCCESS STORIES 



Nebraska: Whooping Crane 

Through the Partners for Wildlife program, the US 
Fish and Wildlife Service has worked to restore 
whooping crane roosting habitat on the Platte 
River, which serves as habitat for migrating 
whooping cranes which prefer to roost in wide 
channels free of vegetation and other obstruc- 
tions Much of the Platte that had been vegetation- 
free has become thickly forested due to extensive 
water impoundment and diversion throughout the 
Platte River system Agreements have been signed 
with the National Audubon Society and individual 
private property owners to clear trees and vegeta- 
tion from their property to open up habitat not 
only for the endangered whooping crane, but also 
for sandhill cranes, waterfowl, shorebirds and 
other migrating birds dependent upon such 
habitat. 

Contact; 

■ Mike Smith, Public Affairs, Region 6 
303-236-7904 

■ Dennis Sherrerd, private citizen 
308-234-3938 



Nebraska: Least Tern and 
Piping Plover 

The endangered least tern and threatened piping 
plover nest on sandbars in the Platte River, and 
also at commercial sand and gravel operations. 
Much of the birds' natural sandbar nesting area 
has disappeared; the U.S. Fish and Wildlife Service 
has assisted the Platte River Whooping Crane Trust 
and the Nebraska Public Power District in creating 
sandbar habitat in the river channel. Vegetation is 
cleared and a dredge sidecasts sand and gravel 
onto cleared islands to simulate the natural nest- 
ing areas of both species. To date, six of these 
habitat complexes have been constructed along 



the central Platte The Service has also worked 
with the Nebraska Concrete and Aggregates 
Association and with private mining companies, to 
fence nesting areas at sand pits. The areas are 
signed with "Do Not Enter" warnings and mining 
personnel are informed of measures to protect the 
nesting birds There has been no loss of jobs or 
profits as a result of these protective measures. 

Contact: 

■ Mike Smith, Public Affairs, Region 6 
303-236-7904 



Kansas: Bald Eagle 



The Army Corps of Engineers proposed to issue a 
permit for the development of Riverfront Plaza, an 
outlet shopping mall, on a bank of the Kansas 
River in Lawrence, Kansas. The project involved 
the removal of several large trees used by bald 
eagles as perch trees; the area in question was a 
known use area for the species, particularly during 
the cold winter months. The mall proposal became 
locally divisive. The U.S. Fish and Wildlife Service 
coordinated with the Corps, the Kansas 
Department of Wildlife and Parks and local spon- 
sors, and reached an agreement whereby permit 
conditions created a habitat area which the 
Service believes to be more stable and secure than 
that which existed prior to the project. The mall 
builders installed one-way viewing windows on 
the river side of the building, enabling patrons 
who might otherwise never see an eagle in the 
wild, to view the birds undisturbed from inside the 
shopping mall. 

Contact: 

■ Mike Smith, Public Affairs, Region 6 
303-236-7904 

■ Marty Burke, Kansas Department of Wildlife 
and Parks 

913-296-2281 



286 



ENDANGERED SPECIES ACT SUCCESS STORIES 



Kansas: Private Property and the 
Bald Eagle 



TWO bald eagle nests have become established in 
Kansas, and both are located on private property. 
The first is on agricultural land in western Kansas, 
where the landowner is very protective of the 
birds; he has, however, allowed the US Fish and 
Wildlife Service limited access for monitoring and 
banding efforts. The second nest is located on a 
cooling lake operated by the Wolf Creek Nuclear 
Operating Corporation. The Wolf Creek staff has 
taken an active interest in this nest in terms of 
protection and monitoring and has assisted the 
Service in a successful effort to band the eaglets. 

Contact: 

■ Mike Smith, Public Affairs, Region 6 
303-236-7904 

■ Mona Grimsley, Wolf Creek Nuclear Operating 
Corporation 

316-364-4143 



Kansas: Peregrine Falcon 



were laid, of which three hatched, with the 
nestlings subsequently banded by Service 
biologists. 

Contact: 

■ Mike Smith, Public Affairs, Region 6 
303-236-7904 

■ Michel' Philipp, Public Information Director, 
Western Resources (KPL) 
913-575-1927 



Kansas: Least Tern 



Partners for Wildlife assisted in restoration of a 
Cimarron River nesting site for least terns Salt 
cedar invasion was reversed and predators were 
excluded. In 1992, the colony had declined from 1 1 
pairs to 1 breeding pair; following restoration 
work, the colony increased to 6 breeding pairs, 
which produced 7 young. 

Contact: 

■ Mike Smith, Public Affairs, Region 6 
303-236-7904 



A pair of banded peregrine falcons arrived in 
downtown Topeka in March, 1993, and began to 
establish a territory less than four blocks from the 
State Capitol. One of their favorite perch buildings 
was one belonging to the Kansas Power and Light 
Co An agreement was reached with KPL limiting 
access and maintenance to the roof, permitting 
placement of a nest box and a constant-monitor 
video camera. The company's cooperation created 
considerable positive public relations, as well as 
heightened public awareness of the importance of 
species such as the peregrine falcon. In 1994, the 
pair returned, most offen using a vacant building 
owned by the City of Topeka The city cooper- 
ated with the Kansas Department of Wildlife and 
Parks to erect a second nest box on the building, 
which was successfully used by the pair. Four eggs 



New York, Pennsylvania: 
Endangered Fresh Water Mussels 

Riparian restoration in the form of streambank 
fencing and plantings has been conducted on sev- 
eral properties along French Creek in New York 
and Pennsylvania. These projects will also benefit 
endangered fresh water mussels, as well as pre- 
serve the diversity of the globally rare community 
found in the creek. The US. Fish and Wildlife 
Service worked with Partners for Wildlife, The 
Nature Conservancy, the Western Pennsylvania 
Conservancy and volunteers in construction of the 
fencing and installation of plantings. The project is 
continuing. 

Contact: 

■ Spence Conley, Public Affairs, Region 5 
413-253-8325 

■ Carl Schwartz, New York Field Office 
607-753-9334 



ENDANGERED SPECIES ACT SUCCESS STORIES 



Ohio: Peregrine Falcon 



Ohio: Lakeside Daisy 



Nesting peregrine falcons have been successfully 
established on ledges of tall buildings in 
Cleveland, Columbus, Cincinnati, Dayton, Toledo 
and Akron by the Ohio Division of Wildlife. In 
1993, when it became apparent that a planned 
Fourth of July fireworks display in Cleveland would 
coincide with the hatching of falcon chicks, the 
U.S. Fish and Wildlife Service, working under an 
emergency informal consultation, helped the city 
maneuver the displays in a way that would not 
harm the birds. Not only did the fireworks show go 
ofT as scheduled, but the falcons ended up stars of 
the show-at the finale, a crowd of 75,000 people 
sang a lullaby for the falcon chicks. 



These flowers, bright yellow and with a blossom 
1 '/i to 2 inches in diameter, occur in the United 
States only at a few locations in the Great L^kes 
region The Lakeside daisy, which thrives in coarse 
soil heavy in limestone, is threatened primarily by 
limestone quarrying To enhance the flower's 
chances of survival, the Ohio Division of Natural 
Areas and Preserves purchased a 19-acre reserve. 
The ODNAP also relocated a number of daisies 
that would otherwise have been destroyed. The 
US Fish and Wildlife Service has provided about 
$15,000 to the State of Ohio to assist in this suc- 
cessful relocation and monitoring effort. 



288 



Endangered Species Act: 
The Rest of the Story 

The Allegations and Responses 



California: The Stephens' Kangaroo 
Rat and Homebuyers 

The Allegation 

This little rodent cost 100,000 taxpayers of 
Riverside County, California, $1,950 each in 
"impact fees" to raise the $103 million needed to 
set aside 30 square miles of habitat. Farmers lost 
up to half their tillable acreage. One family lost 
$75,000 in annual farm income. (Source: Timber 
Industry Labor Management Committee). 

The Response 

Under Riverside County's Habitat Conservation 
Plan for the Stephens' kangaroo rat, a mitigation 
fee of $1,950 per acre of new development, not per 
taxpayer, is being collected to purchase perma- 
nent habitat reserves for the species, helping clear 
the way for development of other areas in the 
county. The mitigation fee translates into approxi- 
mately $215 per home, or less than one-fourth of 1 
percent of the cost of a $95,000 home. 



California: The 1993 Tires 

The Allegation 

People's homes burned down in California 
because they could not clear vegetation around 
their homes due to prohibitions on such clearing 
designed to protect the endangered Stephens' 
kangaroo rat. 

The Response 

The General Accounting Office (GAO) investigated 
these allegations and reported to the Congress in 
June, 1994, that the California fire was fanned by 
80-mile-per-hour winds, and jumped concrete 
barriers, highways and a canal. According to GAO, 
"while some owners continue to believe that disk- 
ing around their homes prior to the fire would 
have saved their homes, we found no evidence to 
support these views. Homes where weed abate- 
ment, including disking, had been performed were 
destroyed, while other homes in the same genera! 
area survived even though no evidence of weed 
abatement was present. Overall, county officials 
and other fire experts believe that weed abatement 
by any means would have made little difference in 
whether or not a home was destroyed in the 
California fire " Firemen said clearing hundreds of 
feet of ground would not have mattered, because 
fires of such ferocity can leapfrog more than a mile 
with searing ashes or hot embers. A university 
professor who has studied such fires declared this 
fire was something that "not even the entire U.S. 
Army could have stopped." Finally GAO con- 
cluded, "on the basis of the experience and views 
of fire officials and other experts, the loss of 
homes during the California fire was not related to 
the prohibition of disking in areas inhabited by the 
Stephens' kangaroo rat." 



ENDANGERED SPECIES ACT: THE REST OF THE STORY 



California: The Kem County Farmer Florida: The Scrub Jay 



The Allegation 

A "strike force" of 25 agents swooped down by 
helicopter, arrested a Taiwanese immigrant farmer 
in Kem County, California, and seized his tractor 
for iciiiing an endangered rat and other endan- 
gered species when he was unaware there were 
protected animals on his property 

The Response 

Mr. Taung Ming-Lin, an immigrant from Taiwan, 
paid $1 .5 million for arid property in California In 
November, 1992, he was notified by registered let- 
ter from the State of California that there were 
endangered species (Tipton kangaroo rat, San 
Joaquin kit fox and blunt-nosed leopard lizard) on 
his property and that he needed to contact state 
and federal wildlife officials to obtain permits 
before proceeding with development of his land 
Other California landowners in similar situations 
have obtained such permits. In February, 1994, a 
State fish and game representative spoke with Mr 
Ming-Lin's foreman about whether appropriate 
permits had been obtained for developing the 
land, since endangered species were present The 
representative advised Mr. Ming-Lin's son during 
the same visit of the need to gain appropriate per- 
mits and provided names of individuals to contact. 
He advised them that cultivation should stop until 
permits were obtained Two more contacts were 
made by state and federal agents advising of the 
need to obtain permits before a search warrant 
was eventually executed on February 20, 1994, by 
approximately four U.S. Fish and Wildlife Service 
agents, California fish and game wardens and biol- 
ogists No helicopters were used. Remains from 
endangered Tipton kangaroo rats were located. A 
tractor and a disc were seized under the authority 
of the search warrant In May 1995, the govern- 
ment dropped the charges in exchange for Mr. 
Ming Un's agreement to wait 6 months before 
resuming farming, to obtain the necessary federal 
and state permits and to donate $5,000 to endan- 
gered species protection in Kem County. 



The Allegation 

In Florida, a person's home is not his castle when 
it comes to the Florida Scrub Jay More than 250 
landowners (were) warned not to alter or remove 
underbrush from their property because "any 
activity which destroys scrub occupied by scrub 
jays may violate (the law)." Touch that scrub and 
you may land in jail for up to 1 year and pay up to 
$10,000 in fines. (Source: Timber Industry Labor 
Management Committee). 

The Response 

Letters were mailed to a large number of property 
owners in Florida explaining how they may obtain 
authorization to proceed with development plans. 
The letters contained information, not threats. 
Since the beginning of that initiative, hundreds of 
authorizations to proceed have been issued by the 
US Fish and Wildlife Service in Jacksonville, and 
many of those were granted within a week of the 
request. Brevard County has requested and 
received a congressional appropriation to fund a 
Habitat Conservation Plan, which, when approved 
by the Service, will solve development conflicts in 
that county as they relate to scrub jays Other large 
projects have proceeded with HCPs or were 
resolved without a need for permits. Overall, pub- 
lic reaction to the scrub initiative has been one of 
acceptance and cooperation. The Endangered 
Species Act has been used to its fullest to help 
solve conflicts related to this species. 



290 



ENDANGERED SPECIES ACT: THE REST OF THE STORY 



Florida: Key Deer 



The Allegation 

To protect more than 400 head of endangered key 
deer on 8,000 acres of Florida Keys, elementary 
children are bused an additional 30 miles around 
the habitat. A plan to build a school at a closer 
location has been stalled because of opposition by 
environmental groups. (Source: Timber Industry 
Labor Management Committee) 

The Response 

The Florida key deer, listed as endangered in 1967, 
inhabits some 26 islands in the lower Florida Keys 
The herd currently numbers between 250 and 300. 
Big Pine Key is believed to support two-thirds of 
this population due to its size, predominance of 
pineland, and year-round availability of fresh 
water The deer need to cross US Highway 1 to 
gain access to seasonal fresh water and to main- 
tain genetic diversity More deer are killed each 
year by vehicles (60 to 65) than are being replaced 
by the herd, and half the deaths occur on US 1 In 
an effort to satisfy the recovery plan goal to estab- 
lish underpasses and overpasses so the deer may 
safely cross the highway the key deer recovery 
team needed to locate two areas that could be 
used as corridors The proposed school was to be 
built near one of the corridors On February 7, 
1995, US Fish and Wildlife Service staff met with 
representatives of Monroe County the School 
Board, and the Florida Department of Community 
Affairs to discuss locating the school in an existing 
facility The Service agreed the revised plan would 
not interfere with movement of the deer because 
the proposal was for a small neighborhood school 
and development will consist only of renovating 
existing church buildings and no more than two 
portable classrooms A vegetated buffer zone will 
be maintained and traffic patterns are not 
expected to increase The Service also recom- 
mended development of a habitat conservation 
plan (HCP) in the area while protecting endan- 
gered species and pledged necessary technical 
assistance to expedite a successful HCP. 



North Carolina: Timber and the 
Red-Cockaded Woodpecker 



The Allegation 

When the endangered Red-cockaded woodpecker 
arrived on Ben Cone's property in North Carolina, 
the Endangered Species Act put 1,000 acres of his 
land ofT limits to him He has spent $8,000 to pay 
biologists to make sure he is following the strin- 
gent rules and figures he has lost $18 million in 
timber that is tied up in the protected zone. To 
protect his remaining land from being occupied by 
the bird and consequently falling under federal 
land control. Cone had no choice but to change his 
timber management practices to try to harvest the 
pines before they become old enough to attract 
woodpeckers and prevent him from using the rest 
of his land (National Wilderness Institute, 
Endangered Species Blueprint) 

The Response 

Mr. Cone was initially offered the option of devel- 
oping a Habitat Conservation Plan, which allows 
incidental take of an endangered or threatened 
species in pursuit of otherwise lawful activity- 
such as logging. Many organizations and develop- 
ers are participating in such plans Mr Cone 
declined In the meantime, he did submit a man- 
agement plan to the US Fish and Wildlife Service 
in Atlanta, which was approved. He is managing 
his land, and logging it. 



291 



ENDANGERED SPECIES ACT: THE REST OF THE STORY 



North Carolina: The U.S. Army and 
the Red-Cockaded Woodpecker 



Oregon: The Butterfly and the 
Golf Course 



The Allegation 

The U.S. Army can defend against the armies of 
Saddam Hussein, but they are losing their battles 
with the Red Cockaded Woodpecker Several areas 
of Fort Bragg, North Carolina, have been closed 
and construction of a needed maintenance divi- 
sion complex is on hold because of this bird, 
which may also threaten harvest of the Southern 
Forest Some call the Red Cockaded Woodpecker 
the spotted owl of the future. (Source: Timber 
Industry Labor Management Committee) 

The Response 

There are 182 million acres of timberland in the 
South (90 percent privately-owned and 10 percent, 
federal and state-owned). The US Fish and 
Wildlife Service estimates that between 500 and 
1 ,000 groups of Red Cockaded Woodpeckers may 
still survive on private lands. Based on the current 
habitat guidelines for Red Cockaded Woodpeckers, 
1,000 groups would require 60,000 acres (i e , 60 
acres per group), or less than 1 percent of the total 
private timberland in the South. This is not consid- 
ered a threat to the Southern Forest, which has 
already been harvested three complete times. 
Construction of the Arm/s maintenance division 
complex has gone forward at Fort Bragg following 
completion of the consultation process with the 
Service, and no necessary training activities have 
been stopped because of endangered or threat- 
ened species. In the case of the Army projects, 
consultation was the key Endangered Species Act 
listings rarely require a substantial change in plans 
for development A 1992 General Accounting 
Office audit found that of 18,21 1 consultations 
between 1988 and 1992, 999 percent went for- 
ward unchanged or with minor modifications. 



The Allegation 

In a cover story entitled, "The Butterfly Problem," 
in the January, 1992 issue of The Atlantic, the 
authors portrayed an Oregon developer whose 
lifelong dream of carving fairways on a section of 
the Oregon coast was snuffed in the morass of 
Endangered Species Act protection of an endan- 
gered butterfly. 

The Response 

U.S. Fish and Wildlife Service personnel helped the 
developer obtain an incidental take permit under 
the Endangered Species Act, recognizing that 
development of a Habitat Conservation Plan in 
connection with the golf course would assist the 
long-term survival of the butterfly The developer, 
however, was unable to satisfy Oregon's land use 
planning laws on grounds unrelated to the ESA, 
and the project was abandoned. 



292 



ENDANGERED SPECIES AC1 



IE REST OF THE STOF 



Texas: Endangered Species Lower 
Property Values 



Texas: Species Stalls Real 
Estate Sale 



The Allegation 

The presence of endangered species has lowered 
property values in Texas. 

The Response 

This allegation is frequently associated with anec- 
dotal reports from individual landowners or with a 
study conducted by the Texas and Southwestern 
Cattleraisers Association. Land values in the 
Austin area, to cite one example, did decline after 
the mid-1980s, but most of that decline occurred in 
1987 because of the Savings and Loan crisis. The 
golden-cheeked warbler-the species usually 
blamed for the loss of property values- was not 
listed as endangered until 1 99 1 . The study by the 
TSCE^ purported to show that land values in 33 
Texas counties affected by endangered species 
listings had declined more than land values in 
other Texas counties This study was analyzed by 
Dr. Stephen Meyer of the Massachusetts Institute 
of Technology (MIT), who found that TSCRA had 
analyzed the economic data incorrectly and that 
the data did not in fact support the conclusion that 
property value declines were associated with the 
presence of endangered species. 



The Allegation 

Margaret Rector owns 15 acres of commercially- 
zoned property in Travis County Texas, which is 
habitat for the golden-cheeked warbler Because 
an endangered species is present on her property, 
she is unable to either develop or sell it. Since the 
land cannot be developed, the value of the 
acreage has declined and Ms Rector alleges she 
has not only lost a good deal of money, but now 
cannot find a buyer at all because of the presence 
of an endangered species on her land 

The Response 

The US. Fish and Wildlife Service informed Ms 
Rector that development of her property required a 
permit under either Section 7 or Section 1 of the 
Endangered Species Act No application for such a 
permit has been received Land values in the 
Austin area declined significantly in the wake of 
the Savings and Ljaan crisis, and the majority of 
the area's property value decline occurred at that 
time, prior to the listing of the golden-cheeked 
warbler It is true that buyer concern about the 
presence of endangered species has been an issue 
in Austin real estate sales. The proposed Balcones 
Canyonland Conservation Plan would address 
problems such as that experienced by Ms. Rector 



293 



ENDANGERED SPECIES ACT: THE REST OF THE STORY 



Texas: Critical Habitat and tiie 
Golden-Clieelced Warbler 



The Allegation 

The US Fish and Wildlife Service proposed 20 
million acres in 33 Texas counties as critical habi- 
tat for the golden-cheeked warbler. 

The Response 

The Service never had plans for any proposal of 
the magnitude described above. There is less than 
800,000 acres of potential warbler habitat in the 
entire State of Texas. Secretary Babbitt announced 
in October 1994 that designation of critical habitat 
would not be necessary for the conservation of the 
species if habitat conservation plans were put into 
place. Work on those plans is proceeding. 



Texas: The Widov/s Story 

The Allegation 

In testimony before the Senate Environment and 
Public Works Committee in April, 1992, a represen- 
tative of the National Cattlemen's Association told 
of a widow near Austin, Texas, who wanted to 
clear her fencerow of brush, only to be threatened 
with prosecution by the U.S. Fish and Wildlife 
Service. 



The Response 

The woman was advised by the Service that her 
clearing of a 30-foot wide, one mile-long fencerow 
might harm endangered songbird nesting habitat, 
but after Service representatives met with her and 
assessed the situation, she was given the go- 
ahead to clear the fencerow. 



Texas: Cedar and Private Land 



The Allegation 

The U.S. Fish and Wildlife Service sues private 
landowners in Texas who try to control cedar on 
their property 

The Response 

The Service supports private property rights and 
has repeatedly said that control of cedar regrowth 
and ongoing rancring practices do not harm the 
habitat of the golden-cheeked warbler. 



Utah: Domestic Geese and the 
Kanab Ambersnail 



The Allegation 

The U.S. Fish and Wildlife Service forced domestic 
geese in Utah to vomit to see if their stomachs 
contained endangered Kanab ambersnails. The 
landowner was threatened with a fine of $50,000 
for each snail eaten by a goose. (Source: National 
Wilderness Institute, Endangered Species 
Blueprint) 

The Response 

Some geese were removed from a pond inhabited 
by Kanab ambersnails None were forced to vomit, 
nor was anyone threatened with a fine for snails 
consumed by the geese. 



294 



ENDANGERED SPECIES ACT: THE REST OF THE STORY 



Critical Habitat and Development 

The Allegation 

When the U.S. Fish and Wildlife Service declares 
"critical habitat" for an endangered or threatened 
species, private landow/ners are prevented from 
developing their land Critical habitat designations 
"lock up" large sections of land, prevent most 
human activities and are the equivalent of setting 
aside wildlife sanctuaries Critical habitat designa- 
tions prevent all economic development. 

The Response 

A "critical habitat" designation means that federal 
agencies must consult writh the Fish and Wildlife 
Service when their activities may adversely modify 
habitat designated as critical to the recovery of the 
species If it is determined that a project will jeop- 
ardize the species, the Fish and Wildlife Service is 
required by the Endangered Species Act to offer 
"reasonable and pmdent" alternatives that will 
protect the habitat while permitting the project to 
proceed More than 99 percent of all projects do 
go forward "Critical habitat" designations apply 
only to actions authonzed, funded or carried out 
by federal agencies Critical habitat does not affect 
private landowners unless they plan a develop- 
ment project that requires federal funding, per- 
mits, or some other action by a federal agency A 
critical habitat designation in no way sets aside an 
area as a wildlife sanctuary or wilderness area. 



California: The Stephens' 
Kangaroo Rat 



The Allegation 

Ms. Cindy Domenigoni has had more than half of 
her farm's 3,100 acres of dry land wheat, barley 
alfalfa and beef cattle severely impacted by the 
listing of the Stephen's kangaroo rat She has been 
forced to idle 800 acres of her land due to restric- 
tions even though her family has farmed and 
co-existed with the species for the last 120 years. 
The federal protections afforded the rat have 
stripped her of her fundamental property rights, 
diminished her land values and drained her fam- 
ily's financial resources. She has incurred nearly 
$400,000 in lost income and direct and indirect 
expenses due to K-rat restrictions. (Summary of 
testimony of Cindy Domenigoni before the House 
Merchant Marine and Fisheries Committee, July 7, 
1993, in Woodland, California). 

The Response 

The U.S. Fish and Wildlife Service is not familiar 
with 800 idled acres, but is aware that 400 acres 
of the Domenigoni farm originally was idled when 
it was believed that it may have been habitat for 
the Stephens' kangaroo rat. A Service biologist 
subsequently examined the land in question and 
determined that the land was not K-rat habitat. 
The Service then granted permission to the 
Domenigoni farm to proceed with farming on the 
acreage, in December, 1993. Ongoing farming 
activities in the Riverside County area have not 
generally been restricted because of K-rat habitat, 
and farming does not require a grading permit. 
Grading permits are required for new activities on 
the land, not continuing activities. 



295 



ENDANGERED SPECIES ACT: THE REST OF THE STORY 



Economics and the Endangered 
Species Act 



The Allegation 

The Endangered Species Act has brought develop- 
ment across the country to a halt. 

The Response 

Properly implemented and enforced, the 
Endangered Species Act successfully balances 
economic needs with conservation needs-as 
evidenced by the U.S. Fish and Wildlife Service's 
consultation record. Endangered Species Act list- 
ings rarely require a substantial change in plans 
for development. A 1992 General Accounting 
Office audit found that of 1 8,2 II consultations 
between 1988 and 1992, 99 9 percent went for- 
ward unchanged or with minor modifications. 
A Massachusetts Institute of Technology study, 
"Endangered Species Listings and State Economic 
Development," completed by Stephen M. Meyer in 
1994 for the Project on Environmental Politics and 
Policy, concluded that ".. the evidence strongly 
contradicts the assertion that the listing of species 
under the Endangered Species Act has had harm- 
ful effects on state economies." 



TUna dve GKlcroach 



The Allegation 

The next thing you know, they'll try to put cock- 
roaches on the endangered species list Too late. 
They already have The TUna Cave Cockroach is 
found in Puerto Rico is a candidate for inclusion 
on the list At least 40 percent of the candidates for 
endangered species are rodents, beetles, snails 
and moths. It will require $144 million to list and 
study these candidates. (Source: Timber Industry 
Labor Management Committee). 

The Response 

The Tuna Cave Cockroach is not on the list of 
Endangered and Threatened Plants and Animals. 
It is on the candidate list, but the U.S. Fish and 
Wildlife Service has spent no money on the 
species. Rodents, beetles, snails and moths com- 
prise 36 percent of the candidates for listing, and it 
is estimated that the study and listing of all 619 
species would cost $19.6 million, not $144 million. 



Economic Development and the 
Endangered Species Act 



The Allegation 

Listing of species under the Endangered Species 
Act hurts economic development 

The Response 

Between 1988 and 1992, only 6 in 5,000 projects 
was actually stopped because of the Endangered 
Species Act. The remainder-99.9 percent-went 
forward without major changes. 



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ENDANGERED SPECIES ACT: THE REST OF THE STORY 



Indiana: A Farmer Loses His Fann 

The Allegation 

A southwestern Indiana fanner named Bart Dye 
stands to lose his farmland which has been in his 
family since 1865. The U.S. Fish and Wildlife 
Service considers the protection of two species, 
mussels in a river adjacent to Mr Dye's land, and 
the possibility that someday a bald eagle may 
decide to land on his property-none of which 
have been sighted-threatens to rob Mr. Dye of the 
use of his farm and prevent him from ever owming 



The Response 

The Farmers Home Administration foreclosed on a 
982-acre farm in Martin County Indiana, in 1984. 
Because of a national Memorandum of 
Understanding with the U.S. Fish and Wildlife 
Service, FmHA subsequently requested the Service 
to evaluate the farm for wetlands and endangered 
species. Subsequent evaluation showed that bald 
eagles, Indiana bats. Eastern fanshell mussels and 
rough pigtoe mussels all resided on part of the 
land or in a nearby river. The Service recom- 
mended establishment of several conservation 
easements, which consisted of a 10-acre wetland, 
a forested bluff adjacent to the White River con- 
sisting of approximately 256 acres for the protec- 
tion of the bats and eagles, and two 100-foot 
buffers along the river. All of those actions 
resulted in a total of 1 1 acres of suitable cropland 
being withdrawn from the total inventory. The 
original owner, Mr. Bart Dye, has exercised lease- 
back buy-back rights to the farm. Those rights 
expire in June, 1996, at which time Mr. Dye must 
buy the fann or FmHA must offer it for sale to the 
public The foreclosure has been through a judicial 
review and FmHA's actions regarding acquisition 
of the property have been upheld. The easements 
will not restrict any future owner's access or use of 
the fann and the price paid by any future pur- 
chaser will be reduced as a result of the 
easements. 



California: Fairy Shrimp and 
Housing Costs 



The Allegation 

The cost of a house in the City of Roseville, 
California, is up $6,000 as a result of the listing of 
the fairy shrimp. 

The Response 

There is a mitigation program involving the fairy 
shrimp in which developers are required to pay for 
either restoration of habitat or acquisition, or a 
combination of both, when the vernal pools that 
support the fairy shrimp are on land marked for 
development. The $6,000 figure is possible if deal- 
ing with a single homesite; if considering a large 
subdivision, the number would likely be much less 
per home. The mitigation is required when it is 
apparent that development will cause vernal pools 
to be filled. That can be avoided, but it can also 
involve significantly larger parcels of land because 
the pools are dependent on watershed, which may 
in turn span a number of homesites. Biologists in 
California are aware of the vernal pool/develop- 
ment problem, and are trying to help developers 
work through it. 



297 



ENDANGERED SPECIES ACT: THE REST OF THE STORY 



Michigan: A Fee Or A Fine 

The Allegation 

A farmer was told he would be allowed to return 
to farming if he gave the government one square 
mile of his property and a mitigation fee of 
$300,000 When the farmer refused this offer, he 
was fined $300,000. That was 10 years ago. The 
farmer is still fighting. 

The Response 

U.S. Fish and Wildlife Service law enforcement 
agents in Ann Arbor and the Field Supervisor in 
East Lansing, who deal with all of Michigan, recall 
no such case The choice of a fee or a fine by a 
court seems highly unusual. The only scenario 
may involve something to do with an easement, 
which in any case would not involve threatened or 
endangered species. 



California: Farmer Fined, 
Loses Land 



The Allegation 

A farmer in California, to avoid jail, reached agree- 
ment with the U.S. Fish and Wildlife Service to pay 
a $5,000 fine, surrender 60 acres of his 160-acre 
farm and then ordered by the court to sell the 
remaining 100 acres. Why? He had plowed his field 
and there on his property was apparently some 
sort of lizard that the Service had deemed threat- 
ened or endangered. 

The Response 

This case involved an agribusiness concern, Tule 
Vista Farms and the incident in question occurred 
in 1989. It was not adjudicated until 1994 The Tule 
Vista Farms investigation was initiated jointly by 
the California Departmeftit of Fish and Game and 
the U.S. Fish and Wildlife Service when a state 
biologist noticed that 160 acres of endangered 
species habitat had been destroyed by disking. The 
subsequent investigation and charges eventually 
resulted in a plea agreement, whereby the Tule 



Vista Farms agreed to deed the entire 160-acre 
parcel to the Service, with 60 acres representing 
land of value equivalent to compensation, mitiga- 
tion and fines in excess of $93,000 The Service 
purchased the remaining 99 35 acres with money 
provided by The Nature Conservancy and the 
acreage then became part of the Pixley National 
Wildlife Refuge There was no court order to sell 
the remaining acreage, surrender of the entire par- 
cel for fines levied and for acquisition was the 
result of a plea agreement 



Uncle Sam and Takings' Claims 



The Allegation 

The U.S. government is facing well over $1 billion 
in takings claims In California alone, property 
owners who can afford legal costs are winning 
about 50 percent of their cases and a report by the 
Congressional Research Service says property 
owners won regulatory takings cases before the 
courts in 1990 more often than not 

The Response 

The $1 billion figure represented the total amount 
plaintiffs were seeking in all pending cases alleg- 
ing takings by the United States, whether or not 
the claims involve land regulation and regardless 
of the likelihood that a court would find a taking or 
the amount a court would actually award if it did 
find a taking. According to the Congressional 
Research Service, in 1993 the largest single source 
of decisions addressing takings claims against the 
United States was federal involvement with failing 
financial institutions; only a third of 1993 decisions 
involved land regulation For 1992 and 1993, the 
Congressional Research Service reports that the 
government won 62 of 67 takings cases decided. 
In 1991, the government won 18 of 23 decided 
cases, and in 1990, 8 of 14. Only a handful of tak- 
ings claims based on endangered species protec- 
tions have been filed before the Court of Federal 
Claims. The United States has never lost a takings 
case under the Endangered Species Act 



ENDANGERED SPECIES ACT: THE REST OF THE STORY 



Kansas: Neosho Madtom Catfish 
Shuts Down Business 



California: Home Destroyed By 
Federal Regulators 



The Allegation 

In Kansas, the Shepard family had spent over 100 
years, or three generations, scooping gravel near 
the Neosho River. Regulators went mad about the 
madtom catfish. They shut down the Shepards 
because the madtom inhabited the Neosho River 
and they thought the fish might be threatened, so 
the Shepards' gravel scooping days were over 

The Response 

The State of Kansas listed the Neosho Madtom 
catfish as threatened, and also listed critical habi- 
tat for the species, under the Kansas Endangered 
Species Act, in 1978. The State of Kansas subse- 
quently halted gravel scooping operations until 
state and federal biologists could determine what, 
precisely, is needed to recover the fish, which 
inhabits gravel areas in streams where it spawns 
and feeds Alternate sites continued to be avail- 
able to be worked by private operators for gravel 
recovery. The US Army Corps of Engineers now 
has jurisdiction over gravel removal activities in 
the Neosho River and the State of Kansas has 
since lifted its gravel removal moratorium. Mr. 
Shepard and other gravel operators have applied 
for the necessary permit from the Corps of 
Engineers. The Corps will consult with the US. 
Fish and Wildlife Service as required under the 
Federal Endangered Species Act. The Service 
listed the Neosho Madtom catfish as threatened in 
1990. 



The Allegation 

When Michael Rowe, of Winchester, California, 
saved enough money to add an extension to his 1- 
bedroom home on his 20-acre ranch, he found he 
was in a Stephens' kangaroo rat study area He 
could have hired a biologist for $5,000-but if he 
found a single rat, the addition still would be ille- 
gal If no rats were found, he then would have to 
pay the government $40,000 for a rat reserve else- 
where In essence, the home was destroyed by 
federal regulators before it left the drawing board. 

The Response 

Stephens' kangaroo rat study areas were areas 
established within part of a short-term Habitat 
Conservation Plan (HCP) established by the 
Riverside County Habitat Conservation Planning 
Agency; the county agreed not to grant grading 
permits within study areas, unless a biologist 
demonstrated that no Stephens' kangaroo rats 
inhabited the area In the case of Mr Rowe's prop- 
erty, the cost of hiring a biologist would not have 
cost $5,000, but $500; a U.S. Fish and Wildlife 
Service agent offered to conduct the study for free, 
but Mr. Rowe declined the offer. The mitigation 
fee, for the Stephens' kangaroo rat reserve, was 
established in an agreement under the HCP The 
fee-$l,000 (not $40,000)-goes to a reserve 
acquisition fund Mr. Rowe's home, which is still 
occupied, was not destroyed. 



299 



ENDANGERED SPECIES ACT: THE REST OF THE STOR> 



California: The Fly and the Hospital Texas: Species Halts Logging 



The Allegation 

Construction of a $600 million hospital in 
Southern California was halted by eight flies The 
hospital had to dedicate 40 percent of the site to 
permanent fly habitat on the hospital grounds to 
proceed with the project 

The Response 

Hospital construction, in Colton, California, was 
never halted An agreement was reached with the 
developer regarding the Delhi sands flower-loving 
fly before construction began The developer 
agreed to set aside 10.27 acres as a reserve for the 
species The hospital site is 76 acres in size, and 
the habitat constitutes 13 5 percent of the total 
acreage Construction remains underway. (The 
Delhi sands flower-loving fly, in a family different 
from that of the common housefly, is orange- 
brown in color, approximately an inch in length 
and has dark brown oval spots on the upper 
abdomen. It is found in five locations in southern 
California and prefers fine, sandy soils. It is an 
important pollinator of flowers, and its movement 
in flight is similar to that of the hummingbird). 



Washington: One Owl 
Gets Your Land 



The Allegation 

The Constitutional interpretation right now is that 
if an owl flies and lands on your land, that owl gets 
all of your land and you are not compensated. 

The Response 

The U.S. Fish and Wildlife Service does not, and 
cannot, take property from a landowner because 
an owl lands there. 



The Allegation 

A $100,000 logging operation north of Houston 
was halted due to an abandoned bald eagle's nest. 

The Response 

An active eagle nest was discovered amid timber 
that was to be logged on land north of Houston, 
worth approximately $100,000 Upon inspection, 
US Fish and Wildlife Service biologists recom- 
mended-but did not order-that the owner of the 
logging operation set aside a percentage of the 
stand. The owner complied voluntarily and pro- 
ceeded to log the remaining stand of timber. The 
Service has pledged to revisit the logging opera- 
tion each year to help the owner determine what, 
if any, further logging may be implemented. (Bald 
eagles and their nests, eggs and young are pro- 
tected under the Bald and Golden Eagle Protection 
Act and the Migratory Bird Treaty Act, as well as 
the Endangered Species Act). 



Arizona: The Flooded Road 



The Allegation 

A road in Greenlee County, Arizona, was flooded 
in November 1994. When the county tried to repair 
the dirt road, the U.S. Fish and Wildlife Service 
threatened a daily fine of $20,000 if work 
continued. 

The Response 

The dirt road, which crosses a stream bed in sev- 
eral locations without benefit of bridges, was 
washed away in at least one location. When the 
Arizona governor declared an emergency, the U.S. 
Fish and Wildlife Service immediately conducted 
an emergency consultation and advised Greenlee 
County authorities to proceed with necessary 
repairs, requesting only that workmen spend as 
little time as possible in the stream bed. The road 
was repaired. The U.S. Fish and Wildlife Service 
made no threat of a $20,000-a-day fine. 



300 



ENDANGERED SPECIES ACT: THE REST OF THE STORY 



Tennessee: Columbia Dam 

The Allegation 

The Tennessee Valley Authority (TVA) began con- 
struction of a 12,600-acre dam in 1973 By 1983, 
the TVA had spent $84 million but was forced to 
halt construction because of a listed mussel and 
plant species. The dam is not complete and TVA 
has no plans to finish it. 

7^ Response 

The construction of Columbia Dam, begun in 1973, 
was halted in 1983 when it became apparent that 
the reservoir could jeopardize the existence of two 
endangered freshwater mussel species Since 
1983, two additional endangered mussels and one 
endangered plant have been located In the project 
area. When the project was stopped, TVA had 
spent $84 million on the dam, finishing 90 percent 
of the concrete portion and 60 percent of the earth 
and rockfill portion Conservation measures were 
agreed to by the U.S. Fish and Wildlife Service that 
would have made completion of the dam possible, 
but TVA eventually elected to abandon the project 
altogether. However, the Service continues to 
work with TVA to explore alternate reservoir sites. 
TVA anticipates finishing an Environmental Impact 
Statement in the Fall of 1995 on one location that 
would seem to satisfy all the water requirements 
and have no adverse impact on endangered or 
threatened species. 



The Squawffish 



The Allegation 

People are paid to catch squawfish in the Columbia 
River while at the same time, $150 million is being 
spent to recover the species in the Colorado River. 

The Response 

The squawfish in the Columbia and Colorado 
Rivers are distinctly different species, the northern 
squawfish {Ptychochelius oregonensis) being a resi- 
dent of the Columbia and living in clear water and 
averaging 13 pounds, and the Colorado squawfish 
{Ptychochelius lucius) Inhabiting the Colorado and 
living in warm, turbid water and averaging 70 
pounds The predator removal program on the 
Columbia is an outgrowth of studies in the 1980s, 
which found that 80 percent of the known juvenile 
salmon predation was attributable to the northern 
squawfish Since 1990, nearly 600,000 squawfish 
have been removed from the Lower Columbia and 
Snake Rivers, which lowered the predation rate on 
juvenile salmon 31 percent by 1994. It is believed 
that the predation rate may be reduced by 50 per- 
cent or more within 10 years The program, con- 
sidered highly successful and now an integral part 
of the salmon management efforts in the 
Columbia Basin, rewards all sport fishermen for 
northern squawfish over 1 1 inches in length. They 
are paid $3 per fish for the first 100, $4 for the next 
300, and $5 per fish over 400. The Bonneville 
Power Administration funds the program, which is 
administered by the Pacific States Marine Fisheries 
Commission in cooperation with the Washington 
and Oregon Departments of Fish and Wildlife. BPA 
has provided $5 4 million annually since 1993 ($8 
million a year from 1990 through 1992) The pro- 
gram has been approved under the endangered 
species program of the National Marine Fisheries 
Service to protect depleted salmon stocks The 
Colorado squawfish recovery plan, approved 
August 6, 1991, identifies $3 2 million for 1992- 
1997 and a total of $53 million to recover four 
fishes (Colorado squawfish, bonytail chub, hump- 
back chub and the razorback sucker) in the 
Colorado River system. 



301 



ENDANGERED SPECIES ACT: THE REST OF THE STOf 



Texas: The Fountain Darter 
and the Military 



The Allegation 

Restrictions under the Endangered Species Act for 
the fountain darter are negatively affecting military 
installations in Texas. 

The Response 

The fountain darter, a small fish, inhabits surface 
waters dependent upon the Edwards Aquifer for 
their instream flows Several military bases in the 
San Antonio area have relied upon Edwards 
Aquifer water for years The military bases' with- 
drawal amount is roughly 3 percent of the total 
withdrawn from the aquifer Recently, the installa- 
tions have been voluntarily incorporating water 
conservation measures and seeking alternate 
water supplies due to general concerns that over- 
all aquifer withdrawal levels have been greater 
than recharge levels The US Fish and Wildlife 
Service has encouraged the military installations 
to evaluate what effects their water withdrawal 
may have on federally-listed species dependent 
upon the Edwards Aquifer, including the fountain 
darter. The military has consulted with the Service 
on several new and amended missions and none 
have been stopped The Service continues to 
encourage the military to examine potential base- 
wide effects to federally-listed species and to 
review means by which any identified effects can 
be minimized Because of the proactive approach 
the military is using, the Service anticipates that 
military water needs can continue to be met with- 
out negatively impacting the resources of the 
Edwards Aquifer 



Texas: The Dream House 

The Allegation 

The Wall Street Journal described the case of Marj 
and Roger Kreuger, who spent $53,000 on a lot for 
their dream house in Texas Hill Country But they 
and other owners were barred from building 
because the endangered golden-cheeked warbler 
was found in the canyons adjacent to their land. 

The Response 

The Kreugers, and others, purchased lots in a sub- 
division near Austin on land that was golden- 
cheeked warbler habitat. Landowners like the 
Kreugers, who qualify for the streamlined Habitat 
Conservation Plan process recently instituted by 
Secretary Babbitt, can receive a permit within 45 
to 60 days from the time of application Should 
they elect to begin construction, they must then 
pay a $1,500 mitigation fee, which goes to a fund 
used to manage warbler habitat At least 17 such 
landowners have applied under the program and 
are expected to receive permits soon There is no 
record of the Kreuger family filing an application. 



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